Vincent K. Heitholt
58 St. Louis U. L.J. Online 19 | PDF
In re: Lawrence Hess: Night of the Plural Terror
I. The Specter of Plurality
After issuing less than twenty “no-clear-majority” plurality decisions in its first 150 years of existence, the U.S. Supreme Court increasingly dumped plurality decisions on the lower courts of the twentieth century. This eventually necessitated the establishment of the “narrowest grounds” Marks rule in 1977 to guide those lower courts in divining precedent from cases with no clear ratio decidendi, or reason for deciding. While the Marks rule is not without its critics, the Court at least attempted to provide a mechanism by which lower courts could glean precedential value from the plurality opinion rationales that would have been entirely disregarded by common law tradition.
Apparently, the Supreme Court of Missouri has never been presented with an incentive to create such a mechanism. Of that court’s seventy-five opinions issued in 2013, only one could be classified as a plurality. That case was In re: Lawrence Joseph Hess, issued on August 27, 2013. In Hess, the Office of Chief Disciplinary Counsel recommended reciprocal discipline for attorney Hess, based upon the Illinois Supreme Court’s suspension of Hess’s license on the other side of the Mississippi. Judge Zel Fischer’s lead, or “principal,” opinion—which garnered the support of only two other judges—raises questions about not only the interpretation of the rule of professional conduct at the center of the case but also the precedential value of the Missouri high court’s rare—at least for now—plurality decisions.
II. Hess’s Folly
Lawrence Hess, a member of the Missouri Bar since 1975, signed an employment agreement with Kanoski & Associates in 2001. The agreement established that all proceeds Hess received from the firm’s clients for his professional services would be the property of the firm. In 2004, Hess filed a medical malpractice action in an Illinois circuit court on behalf of Ronald and Cathy Loyd, clients of Kanoski & Associates by way of a contingency fee agreement, and Hess performed most of the work on that case until his employment with the firm was terminated in February 2007.
The Loyds chose to remain with Kanoski & Associates after Hess’s termination, and, in June 2008, the medical malpractice suit was settled after mediation. Hess hired Bruce Carr to represent him in a breach of contract action against Kanoski & Associates for the firm’s failure to compensate him for the work he completed on the Loyds’ case. In July 2008, Carr filed a complaint and attorney’s lien against the Loyds. Carr contacted the Loyds’ new counsel, offering to dismiss the claim in exchange for half of the over $300,000 placed in escrow by the defendants in the Loyds’ medical malpractice suit. In December 2008, the circuit court dismissed Hess’s claims as “legally deficient” and sanctioned Hess or Carr almost $10,000 for the Loyds’ attorney’s fees and expenses. Hess also faced charges of misconduct for filing attorney’s liens in two separate actions.
On September 27, 2012, the Illinois Supreme Court suspended Hess from practicing law for six months, finding that “the purpose behind the filing of the lawsuit against the Loyds by Hess and Carr was to harass, intimidate, and burden the Loyds in order to pressure or influence Kanoski . . . to settle Hess’[s] claim against them.” On October 30, 2012, the Office of Chief Disciplinary Counsel in Missouri then filed its information requesting reciprocal discipline with the Supreme Court of Missouri.
III. Hess’s Two-Majoritied Monster
A. The Majority of the First Majority
Judge Fischer’s lead opinion held that “Hess’s actions in Illinois constituted the ‘knowing’ and ‘deliberate’ filing of frivolous claims and liens[ and] . . . that Hess ‘misused the courts and harmed Hess’s former clients in an effort to gain an advantage in Hess’s employment dispute.’” Therefore, Hess violated Missouri’s Rules of Professional Conduct 4–3.1 and 4–8.4(d). Rule 4–3.1 states, “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law.” Judge Fischer’s opinion reasoned that Rule 4–3.1 applied to lawyers acting as advocates or as litigants: “The language of Rule 4–3.1 is plain, ordinary, and unambiguous. . . . This rule begins with a singular, unqualified subject: ‘a lawyer.’ It does not read ‘A lawyer acting as an advocate,’ nor does it read ‘A lawyer as a litigant.’” Because of Hess’s participation in the filing of the suit “to harass, intimidate, and burden the Loyds in order to pressure or influence Kanoski,” Judge Fischer further reasoned that Hess violated Rule 4–8.4(d), which defines one form of misconduct as “engag[ing] in conduct that is prejudicial to the administration of justice.”
B. The Minority of Both Majorities
Chief Justice Mary Russell and Judge Paul Wilson joined in Judge Fischer’s analysis, but Judge Patricia Breckenridge adopted a different analysis in casting the deciding vote to suspend Hess’s license to practice law in Missouri. Judge Breckenridge agreed that “Rule 4–8.4(d) does not limit its application to conduct occurring in the representation of a client,” but she did not agree that Rule 4–3.1 applied to attorneys acting as litigants. Judge Breckenridge’s decision to discipline Hess was therefore based solely upon an independent violation of Rule 4–8.4(d).
C. The Majority of the Second Majority
Like Judge Breckenridge’s concurrence, the dissent—authored by Judge Richard Teitelman and joined by Judges Laura Stith and George Draper—interpreted Rule 4–3.1 as applying only to lawyers acting as advocates. Judge Teitelman pointed to the first two comments on the rule, which refer specifically to “the advocate” and “action taken for a client.” He then cited precedent limiting professional discipline for personal misconduct to situations of egregious dishonesty, destructive personal misconduct or the commission of crimes that reflect adversely on a lawyer’s fitness. Hess’s actions, “though perhaps exhibiting poor judgment, [did] not involve a criminal conviction or an effort to defraud or terrorize a former client.”
IV. Where’s the Precedent?
The three-one-three split in this case presents an “unstable form of case law,” as plurality decisions naturally do. This split is particularly interesting, however, because a majority of judges sided with what essentially amounts to the losing interpretation of Rule 4–3.1. This phenomenon is referred to as a “dual majority,” where one majority supports the outcome of the case and another distinct majority supports a particular rationale. What makes the split in Hess even more mystifying is that the Supreme Court of Missouri offers little guidance on evaluating the authority of such a decision. In fact, the court’s only statement on the matter predates even the Marks rule.
In 1966’s Musgraves v. National Dairy Products Corporation, the Supreme Court of Missouri noted that the opinion of Wise v. St. Louis Public Service Company had “only the full concurrence of its author and two other judges . . . [and] obviously was not authoritative except as to the result reached therein and could not have overruled any prior decisions.” Although Musgraves has yet to receive negative treatment, it has not been cited since 1998. Given that this rule for interpreting plurality decisions is only a restatement of an antiquated common law tradition, the Supreme Court has never adopted its own procedure for evaluating a split like that in Hess. Of course, with the conspicuous lack of plurality opinions, one can speculate that the judges consciously work around them. Nonetheless, under the Musgraves rule, Hess remains in a twilight zone where an issue has been decided without being decided.
The Supreme Court of Missouri may have felt comfortable issuing a dual-majority decision in Hess only because it knew that there would be no lower courts scratching their heads over a majority rationale that cannot sufficiently support with the outcome of the case. Although the Hess decision may inform some actions taken by the Office of Chief Disciplinary Counsel, the lead opinion notes that, in interpreting Rule 4–3.1, the court ultimately gives “effect to its own intent.” In other words, any interpretational dialogue following this case will be between the Supreme Court of Missouri and itself. The Hess decision, however, is not without external frustrations; Missouri attorneys are, for now, left with an unclear rule regarding the limits of their professional conduct as litigants.
V. Visions of the Plural Apocalypse?
Although the Supreme Court of Missouri’s primary method of dealing with plurality decisions is to simply not issue them, the court could also benefit from proactively addressing the precedential value of any future plurality decisions that may impact a broader array of Missourians than just lawyers. In the wake of Marks, there has been a wealth of scholarship for evaluating all sorts of plurality opinions, from the dual-majority to the complex plurality, and the court could adopt a far superior model to that embattled rule. There are several polarizing issues on the horizon, one of which was recently hinted at in the court’s decision in Glossip v. Missouri Department of Transportation and Highway Patrol Employees’ Retirement System. Furthermore, the composition of the Supreme Court of Missouri will not remain static forever. There may be cause for concern that state supreme courts will begin issuing plurality opinions with the same frequency as the U.S. Supreme Court and that lower state courts will not be equipped to interpret them.
Vincent K. Heitholt*
 Mark Alan Thurmon, When the Court Divides: Reconsidering the Precedential Value of Supreme Court Plurality Decisions, 42 Duke L.J. 419, 419–20 (1992).
 Id.; Marks v. U.S., 430 U.S. 188, 193 (1977).
 Joseph M. Cacace, Plurality Decisions in the Supreme Court of the United States: A Reexamination of the Marks Doctrine After Rapanos v. United States, 41 Suffolk U. L. Rev. 97, 110–11 (2007).
 Id. at 104–05.
 Opinions for Supreme Court, Your Missouri Courts (last checked Feb. 10, 2013), https://www.courts.mo.gov/page.jsp?id=12086&dist=Opinions%20Supreme&date=all&year=2013#all.
 In re Hess, 406 S.W.3d 37, 38 (Mo. banc. 2013).
 Id. at 49 (Breckenridge, J., concurring).
 Id. at 38–39.
 Id. at 39.
 Hess, 406 S.W.3d at 39.
 Id. at 40.
 Id. at 40.
 Hess, 406 S.W.3d at 40–41.
 Id. at 41–42 (quoting the “Hearing Board”).
 Id. at 42.
 Id. at 43.
 Id. at 46.
 Mo. R. Bar Rule 4–3.1.
 Hess, 406 S.W.3d at 43.
 Id. at 46.
 Mo. R. Bar Rule 4–8.4(d).
 Hess, 406 S.W.3d at 49.
 Id. at 50.
 Id.; Mo. R. Bar Rule 4–3.1.
 Hess, 406 S.W.3d at 51.
 Ken Kimura, A Legitimacy Model for the Interpretation of Plurality Decisions, 77 Cornell L. Rev. 1593, 1594 (1992).
 Comment, Supreme Court No-Clear-Majority Decisions: A Study in Stare Decisis, 24 U. Chi. L. Rev. 99, 115 (1956).
 Musgraves v. Nat’l Dairy Prods. Corp., 400 S.W.2d 93, 96 (1966).
 See In re Burns, 975 S.W.2d 275, 276 (Mo. Ct. App. 1998).
 Hess, 406 S.W.3d at 43.
 Ken Kimura’s article is particularly fascinating. See generally supra note 32.
 Glossip v. Mo. Dep’t of Transp. & Highway Patrol Employees’ Ret. Sys., 411 S.W.3d 796, 805–06 (Mo. 2013); see also Lindsay Johnson, Glossip v. Missouri Department of Transportation and Highway Patrol Employees’ Retirement System: A Denial of Survivor Benefits to the Decedent’s Same-Sex Partner, 58 St. Louis U. L.J. Online 25, 28 (2014).
* J.D. Candidate, 2015, Student at Saint Louis University School of Law. I would like to thank Professor Kelly Mulholland, Michael Downey, Dean Michael Wolff, and the members the Saint Louis University Law Journal for their support in the publication of this summary.