Hoffmeister v. Tod

• Decision Date: 11 September 1961
• Docket Number: No. 47787,47787
• Citation: 349 S.W.2d 5
• Parties: Fred J. HOFFMEISTER, Chairman, William Kohn, John A. Arnold, Christian B. Peper, and Albert Krueger, constituting the Bar Committee of the Eighth Judicial Circuit of Missouri, Fred B. Hulse, James M. Reeves, Forrest M. Hemker, Clyde J. Linde and C. Wallace Walter, Members of the Advisory Committee of the Supreme Court, Informants, v. Edward M. TOD, Respondent.
• Court: Missouri Supreme Court

Page 5

349 S.W.2d 5

Fred J. HOFFMEISTER, Chairman, William Kohn, John A. Arnold Christian B. Peper, and Albert Krueger, constituting the Bar Committee of the Eighth Judicial Circuit of Missouri, Fred B. Hulse, James M. Reeves, Forrest M. Hemker, Clyde J. Linde and C. Wallace Walter, Members of the Advisory Committee of the Supreme Court, Informants, v. Edward M. TOD, Respondent.

No. 47787.

Supreme Court of Missouri, En Banc.

Sept. 11, 1961.

Courtney S. Goodman, St. Louis, special counsel for informants.

Morris J. Levin, S. Sheldon Weinhaus, St. Louis, for respondent.

F. Trowbridge vom Baur, Washington, D. C., Wayland B. Cedarquist, Chicago, Ill., Jonathan F. Ells, Winsted, Conn., Terrell Marshall, Little Rock, Ark., William L. Murphey, Los Angeles, Cal., H. H. Perry, Jr., Albany, Ga., Raymond Reisler, Brooklyn, N. Y., Melvin F. Adler, Fort Worth, Tex., for American Bar Ass'n, amicus curiae.

Rexford H. Caruthers, Caruthers & Montrey, St. Louis, for Lawyer's Ass'n of St. Louis, amicus curiae.

James K. Moran, Charles F. Luke, St. Louis, for Bar Ass'n of St. Louis, amicus curiae.

Malcolm L. Bartley, St. Louis, for Missouri State Labor Council, AFL-CIO, amicus curiae.

William M. Howard, St. Louis, Joseph E. Stevens, Jr., Kansas City, for Unauthorized Practice of Law Committee of Missouri Bar Integrated, amicus curiae.

EAGER, Judge.

By leave of court, the Bar Committee of the Eighth (now Twenty-Second) Judicial Circuit filed here an information charging respondent Edward M. Tod, a layman, with the unauthorized practice of law in various particulars, and with contempt. The Committee had previously conducted hearings and found probable cause. Tod filed an answer and return. No point is made on these formal pleadings and we do not digest them, except to say that Tod has denied that any of his acts constituted the practice of law or contempt, and asserts that he has never held himself out as an attorney. The issues will clearly appear from our discussions of the evidence. The members of the Bar Advisory Committee have jointly entered their appearance, by leave, and have become additional parties informant. Leave has also been given for the filing of sundry briefs amici, which were duly filed; these include the St. Louis Lawyers and Bar Associations, the Missouri Bar (by its Committee on Unauthorized Practice), the American Bar Association, and the Missouri State Labor Council, AFL-CIO. These additional briefs have been helpful.

The court appointed the Honorable P.M. Marr as its Special Commissioner with the usual powers. He held extended hearings in St. Louis, including seven days of actual testimony, and he has filed a detailed report, with his findings and conclusions. For the present it will suffice to say that he found that Tod had been unlawfully practicing law and that he should be adjudged guilty of contempt; he recommended that Tod be enjoined from performing sundry acts which he had customarily been performing, and that he be fined.

Tod is charged, in considerable detail, with unlawful practice before the Division of Workmen's Compensation and also before the Division of Employment Security, both being Divisions of the Department of Labor and Industrial Relations. It will be necessary to state the facts in some detail. There is no pretense that Tod has ever been licensed as a lawyer, anywhere; he is and has been since 1944, a labor representative. From 1944 to 1957 he was President of the St. Louis Industrial Union Council, and maintained an office as such in the Buder Building; he was designated by it as 'Community Services Representative' to the United Fund, Inc. (the 'War Fund' during appropriate years) of St. Louis. When the AFL and the CIO merged in 1957, Tod became Vice-President of the new St. Louis Labor Council AFL-CIO, and has remained as its 'Community Services Representative.' Since 1957 Tod's office in the Buder Building has been designated and listed as the 'Union Referral Center,' and the expense of its maintenance has been paid by various union locals. The national AFL-CIO has set up so-called Community Service Committees which have designated representatives in many principal cities. These local representatives, such as Tod, act as 'liason' representatives between labor and the local charity organizations. As such representative, Tod's principal duties (and probably his sole duties) are to 'sell the United Fund program' by visiting the various plants where his union members are employed, to consult with management and union officials, and to set up and promote programs of solicitation and wage deductions. His entire compensation of $8,280 per year is paid by the United Fund, obviously for the services just referred to. He receives nothing from the unions, national or local, except his office expenses. He also has an office at another location, maintained by the United Fund. He testified that his total services comprehend all 'out-plant problems of all our union members,' a sizable task at best, we may say. Apparently the 'Community Services Committee' of the AFL-CIO assigned this latter project to him, beginning, as he said, 'when we once go on the payroll of the United Fund * * *.' He testified also: that these broad services to union members include assistance in matters involving 'Workmen's Compensation, Unemployment Compensation, Social Security, Veterans' problems * * * aid to the blind, old age assistance * * * aid to dependent children * * * general relief program * * * hospitalization (and) the placement of orphan children'; that he works about sixty hours a week, and averages probably four hours weekly on Workmen's Compensation matters and one and one-half hours weekly on Employment Security matters; that the majority of his time is spent in setting up the United Fund programs. He gave no estimates of any time spent on the other many and varied lines of endeavor which he listed. He further testified that the United Fund officials knew of the time which he spent and of his activities before the Divisions of Employment Security and Workmen's Compensation, and that this was 'part of the agreement.' No official of that Fund was called as a witness.

Our Bar, generally, is reasonably familiar with the nature of proceedings before our Division of Workmen's Compensation, and we shall not outline them in detail. We note, however: that the terms 'accident' and 'injury' have stated and specific statutory meanings (Sec. 287.020, RSMo 1959, and V.A.M.S., to which revisions all statutory references will apply); that written notice of injury within 30 days is required (Sec. 287.420); that the employer is required to file a written Report of Injury (Sec. 287.380); and that claim must be filed within one year of injury, with certain exceptions (Sec. 287.430; Sec. 287.440). In many cases, when the Division at Jefferson City receives a Report of Injury it sets a conference before the nearest 'Legal Adviser' and sends out notices to the employee, the employer, and the insurer; at that time it fills in portions of a blank form entitled 'Report of Free Legal Aid' and sends this to the Legal Adviser; this contains the basic information which the Division then has. The testimony of Vernon W. Meyer, the Referee in Charge at St. Louis, giving the reasons for setting such conferences, is apropos: '* * * if it appears from the medical report that the man has sustained any permanent injury or an eye injury of any consequence, or if it appears that there was extensive lost time or if it appears that the Compensation rate is in dispute or if it appears that the employee questions the adequacy of that which is being provided him, either in the way of treatment or Compensation, we set that case for a conference in the St. Louis office, we have a conference set before a Legal Advisor * * *.' The nature and effect of the conference which follows is the source of much argument here, pro and con. In any event the parties appear, by counsel or otherwise, no formal claim having been filed, and they discuss the matter; the employer is expected to produce a current medical report. The Legal Adviser is there to advise both parties impartially, and specifically to inform the employee of his rights; he also seeks to promote a voluntary agreement between the parties, either on a rating of permanent partial disability (in which event the matter remains open for the period during which a claim may be filed) or upon an amount to be paid in full settlement and compromise, which forecloses further proceedings. Such conferences are reset if it appears that the disability cannot yet be fully evaluated. The Legal Adviser may not force a settlement, but he may veto one. Among the many questions which arise and are discussed at these conferences, with varying frequency and often with divergent views, are the following: the extent of disability,--including its duration if temporary, and its proper rating if permanent; the evaluation of medical reports; questions of 'multiple injuries' and their effect on the body 'as a whole'; the consideration of back injuries, head injuries, etc., which are not and cannot be arbitrarily 'scheduled' (Sec. 287.190) at so many weeks of compensation; whether there has been an accident and a compensable injury as defined by the law; the consideration of occupational disease as opposed to accidental injury; whether the bar of limitations has run; whether notice was properly given; whether the claim is one which permits resort to a claim under the 'Second Injury Fund' (Sec. 287.220); the wage rate of the employee with possible evaluation of extras or services furnished, and the rate of compensation; whether there is a healing period; disfiguration (Sec. 287.190); and hernia cases, on which there are specific statutory requirements of proof (Sec. 287.195). If no agreement is arrived at, the matter is reset or the claimant is advised to file a claim and proceed to a hearing; the Division...