Two of Missouri’s biggest law firms - Blackwell Sanders Peper Martin and Husch & Eppenberger - are engaged in preliminary merger talks, both firms confirmed Monday.

The combination of the two would create a firm with 630 attorneys, ranking it second in size among Missouri-based law firms after Bryan Cave, which has about 800 attorneys worldwide.

Husch, which is based in St. Louis and has a 40-attorney office in Kansas City, has about 300 attorneys. It tallied $124 million in revenues last year, according to The American Lawyer, a legal publication.

Blackwell, which is based in Kansas City, has about 330 attorneys and grossed $116.5 million last year. About half the firm’s attorneys are based in Kansas City.

"Merger discussions are in their early stages, but our intentions are serious and the prospects for this strategic combination are exciting," said Dave Fenley, Blackwell chairman. "As with any merger talks, nothing is final until the deal is signed."

Blackwell is best known for its corporate, litigation, transactional, real estate, and labor and employment practices. Husch is best known for its litigation, commercial finance, environmental and bankruptcy practices.

Both firms have offices in multiple cities; the merged firms would have 16 locations in the United States and London.

Husch held preliminary merger discussions last year with Stinson Morrison & Hecker, another large Kansas City firm, but the talks fell through.

Its talks with Blackwell come little more than a year after eight estate planning attorneys left Husch for Lathrop & Gage, leaving a gaping hole in Husch’s estate planning practice in Kansas City.

Not long before that, four estate planning attorneys at Husch jumped ship for Blackwell, one of several instances in recent years of attorneys migrating from one firm to the other.

Although the cross-fertilization of attorneys may make a merger of the two firms easier to pull off, Fenley said that was not the impetus behind the proposed combination. Rather, he said, a consulting firm used by both firms - Hildebrandt International - recommended the marriage.

"They thought it was a very good fit," he said. "A merger would allow us to become more diverse and more sophisticated and would create greater depth. That’s what clients are looking for these days."

How old is too old?

That's an issue facing lawyers across the country as the American Bar Association and state organizations consider proposals to eliminate mandatory retirement ages at many of the biggest and most prestigious law firms.
 
Forced retirement at an arbitrary age -- as early as 60 in some cases -- creates openings for new partners and helps firms avoid tough decisions on whether an older partner is still performing up to standards.

"It's easier to have a bright-line test" -- a clearly defined rule -- said Drew Berry, chairman of the executive committee at McCarter & English, New Jersey's largest law firm.

That way you avoid the difficult problem of making distinctions between two partners, he said. "How do you tell one he can stay and one that he can't?"

But forced retirement can also cost firms some of its most skilled and productive members, including some who might take clients with them, Berry said.

Last month, the ABA endorsed a recommendation from the New York State Bar Association that calls upon law firms to discontinue the practice. Law firms should evaluate senior partners individually based upon the performance criteria used to evaluate other lawyers in the firm, the ABA said.

"Senior lawyers should not be forced to leave their firms solely on the basis of age when they have many productive years left and are still making valuable contributions to the firm," said Mark Alcott, a past president of the New York bar association.

"Forcing lawyers to retire solely because of age, regardless of performance, regardless of objective criteria, is not an acceptable practice and not in the interests of the legal profession," he said.

Because law firms are partnerships, the partners are owners, not employees. As a result, firms can have mandatory-retirement policies despite laws that make them illegal for some of their clients.

But change may be coming.

"While young lawyers represent our tomorrow, we also have a cadre of experienced lawyers who still have much to offer our association and our profession," Lynn Fontaine Newsome, president of the New Jersey State Bar Association, said in a statement on the association's Web site.

She has endorsed a program to explore ways to "reengage senior lawyers so that we can all benefit from their accumulated knowledge and expertise, and enable them to continue to be active bar members."

That's what has happened at Hackensack-based Cole Schotz Meisel, Forman & Leonard, Bergen County's largest law firm, which has no mandatory retirement age.

"What we have is a very flexible arrangement," partner Steven Leipzig said. "We recognize that partners and senior members of the firm continue to make valuable contributions to the firm well into their 60s and 70s."

Name partners Morrill Cole and Edward Schotz are both in their 70s "and continue to practice law vigorously and make a valuable contribution to the firm," Leipzig said.

Absent forced retirement, the firm can attract older partners from smaller firms that will give them and their clients continuity, he said. "That certainly benefits the firm."

Practical considerations prompt some firms to rewrite their rules, as happened at Newark-based McCarter & English this year.

"Like many law firms, we are in transition," Berry said. "We have had for many, many, many years -- try 35 years -- a mandatory retirement age for equity partners of 70. That meant after age 70, you would cease being an equity partner. You could be 'of counsel,' meaning you kept your desk and secretary. But it was all very informal, and you didn't get paid" by the firm.

That system "seemed to work for the firm for a long, long time," but when faced this year with the loss of a highly regarded litigator, simply because he turned 70, the firm decided to change its policy, Berry said.

Attorneys must still retire as equity partners at age 70, but if they are "still in the game, want to keep working, and the law firm wants them to keep working," they can remain on an annual contract basis, he said. They no longer share in earnings and don't vote on firm matters, but are expected to continue practicing at high levels.

"Without falling over into cliches, compared with 25 years ago, some people are active and healthy and 'in the game,' " Berry said. "That's the relevant phrase for me as chairman of the firm. If they're in the game and they're engaged and they're doing well, what are you going to do?"

The Washington Restaurant Association, which opposes King County's plan to mandate that chain restaurants label their menus with nutritional information, is lauding a New York court decision that essentially strikes down a similar plan.

In U.S. District Court in Manhattan, a judge ruled in favor of the New York State Restaurant Association, which challenged a similar menu labeling plan enacted by the New York City Board of Health.

The Washington State Restaurant Association (WRA) applauded the New York court decision, with officials saying that King County's mandate that was enacted in July and takes effect next year is in jeopardy.

"We are hopeful that the findings in New York City will compel the King County board of health to come back to the table and work in partnership with the industry. While we believe obesity is an issue we must address as a community, the WRA strongly opposed the board's menu labeling requirement this summer," said Anthony Anton, WRA president and CEO, in a statement.

The King County board of health plan would require chain restaurants with more than 10 national locations to display calorie, fat, sodium and carbohydrate information on menus. Restaurants would have until Aug. 1, 2008 to put the information on menus and menu boards.

Jackson DeMarco was represented by Studley's Royce Sharf, branch manager and executive vice president; Bruce Schuman, senior vice president, and Mike Props, managing director, all from Studley's Orange County office. Sharf and Props represented the firm on its original lease at the same location in 2002.

The law firm recently added 12 attorneys when it expanded its complex litigation practice, according to Sharf. "Maintaining the firm's ability to remain flexible and align its real estate occupancy needs with the business plan has been of paramount importance,” he adds.

The Studley brokers tell GlobeSt.com that Jackson DeMarco wanted to restructure its lease because the firm continues to grow and needed to lock down future expansion space. The deal allows the firm to grow in stages over the next couple years.

Terms of the new lease were not disclosed. Asking rates for space in the 2030 Main St. building, a 16-story tower of nearly 347,000 sf that was built in 1990, are $3.30 per sf per month.

The building's owner, the State Teachers Retirement Board of Ohio, was represented by CBRE's John Weiner in the new lease with Jackson DeMarco. The law firm also maintains an office in Westlake village.

Six years ago, the Harris County Bail Bond Board, which regulates the bond industry, told Pruett to stop calling. Officials said he was breaking a local rule that banned certain solicitations. And they threatened to suspend his license to do business.

Pruett fought back with a lawsuit against the board and Harris County and recently, after a protracted legal fight, a federal appeals court ruled he and fellow bondsman Scott Martin had a First Amendment right to consult public records, then solicit business by phone.

Calling times restricted

The 5th U.S. Court of Appeals ruled that state-imposed restrictions on "commercial speech" were unconstitutional, but agreed with the state law restricting solicitation calls between 9 p.m. and 9 a.m.

Essentially, Pruett and Martin used public records to troll for people with outstanding warrants, and then called them to offer their services.

Constable offices, the county and other municipalities use those same records to mail thousands of letters every month to people with open warrants for bad checks, unreturned DVD rentals, unresolved traffic violations and other nonviolent criminal cases.

The 5th Circuit ruled that Pruett and Martin had the same rights to contact those people.

"The statute does not prevent attorneys, law enforcement officials or anyone else from alerting someone that he's the subject of an open warrant," the court said. "Harris County cannot give such notice itself and then claim that restricting notice by others is necessary to the safety of its officers and the public and the prevention of flight."

County Attorney Mike Stafford said the county didn't create or enforce the state law, but intervened to prevent bondsmen from "tipping off" alleged criminals. He said protecting officers from possible violence is a legitimate objection and the county will likely appeal the latest decision to the U.S. Supreme Court.

David Furlow, who represents Pruett and Martin in the federal lawsuit, hailed the decision as a "vindication of First Amendment rights." But he said perhaps more importantly, the courts action sent a loud message to fellow bondsmen who saw Pruett and Martin as unscrupulous competitors.

"The largest bail bonding companies with large investments in Yellow Pages ads and large existing bases of criminal defendant clients, they wanted to restrict those and keep other bail bondsmen from contacting them," Furlow said.

Justice Anthony Kennedy, who voted with the majority, said in a separate opinion supporting his decision that racial balance is a worthy goal for school districts and that districts can use other methods to achieve it.

That opinion has both the district and the parent group, Parents Involved in Community Schools, declaring victory. It's one reason the district, which spent about $434,000 on its portion of the seven-year battle, doesn't believe it should have to pay the plaintiffs' fees.

Technically, the parents group still has to get a U.S. district judge to declare them the "prevailing party," said Seattle Public Schools attorney Shannon McMinimee.

McMinimee says it's "disingenuous" for the law firm, Davis Wright Tremaine, to go after money when the firm took the case pro bono. But firm spokesman Mark Usellis said "pro bono" means their clients don't have to pay.

"The thing that's really important to us in a civil-rights case is that Congress specifically and explicitly wrote into the law that if the government is found to have violated citizens' civil rights, then the prevailing party should seek fee recovery," he said.

Most governments can argue, as Seattle Public Schools is, that they don't have much money. But going after the fees helps deter other government bodies from violating civil rights, Usellis said.

The parents who sued the district in 2000 did not seek damages but asked the court to force Seattle to stop using the race-based tiebreaker that prevented their children, who are white, from attending Ballard High School. The district did, in 2002, but continued to fight for the policy in court, eventually making it all the way to the U.S. Supreme Court last year.

The 9th U.S. Circuit Court of Appeals will decide whether to award the fees to the firm. If the firm wins, the fees likely wouldn't be covered by the district's insurance carrier, McMinimee said. So the money would have to come out of the district's $490 million general-fund budget.