Attorney Martin Nussbaum To Reclaim News And Our Reply

Rev. Jack Cascione

1. Reclaim News Introduction

Attorney Martin Nussbaum copied the following communication to Reclaim News on March 1, 2004.  The entire opinion can be found at http://www.crisisinthelcms.org

Basically, Nussbaum argues that the legal opinion from the Brian Cave Law Firm, obtained by the LCMS Board of Directors, is in error, because the First Amendment protects the LCMS Board of Directors from the Laws of Incorporation in the State of Missouri.  The Cave opinion argues that as a Non-Profit Corporation the LCMS Board of Directors must be the governing body of the Synod when the Convention is not in session.  Cave explains that if the LCMS Commission on Constitutional Matters (CCM) has authority over the Board of Directors (BOD), Synod is in violation of Missouri Law.

Nussbaum's opinion assumes that the CCM, appointed by President Kieschnick, has authority over the BOD, which means the Convention has been disenfranchised by Kieshnick's appointees.  If Cave's opinion is correct, President Kieschnick has assumed administrative authority of the Synod under his office through his appointees on the CCM.  Whether we agree with Nussbaum or Cave, in either case, the LCMS Convention is being disenfranchised by President Kieschnick.

Nussbaum also gave legal council supporting Cardinal Law during the government investigation of pedophile clergy in the Boston Diocese.

2. Copy of Nussbaum's letter to the LCMS Board of Directors sent by Nussbaum to Reclaim News.

Nussbaum copies to Pastor Jack Cascione as follow:

Messrs. Hawk and Preus:

I am glad that you have received a copies of my February 3, 2004 correspondence to Dr. Kieschnick as well as the supporting correspondence from Missouri lawyers, Prof. Carl Esbeck and Mr. Michael Whitehead.  As you can see, we made a significant effort to thoughtfully address the biblical, theological, statutory, and constitutional issues relevant to disputes within the Lutheran Church-Missouri Synod.  The Synod--both in convention and through the decisions of its leaders-has historically attempted to define structures for church governance consistent with Scripture and historic Lutheran Confessions.  We have tried to show that the attempt by some within the Synod to hand over to the Missouri legislature the ability to define the governance of the Synod is not only contrary to the religious beliefs important to the Synod, it is also neither required by the Missouri Non-Profit Code nor permitted by the First Amendment.  We should all be grateful that, in the United States, churches and denominations are permitted to define their own governance without oversight or correction by the civil authorities.

My clients love and support the Lutheran Church-Missouri Synod.  They have long been associated with Synod, and they pray for the resolution of the current conflict within the Synod in a manner which does not compromise the Synod's independence from the State or its ability to govern itself.  They hope that you will consider our analysis on its own merits and without viewing it through the filter of personality.  Accordingly, they have asked that their identify remain undisclosed at this time.

L. Martin Nussbaum, Esq.
Rothgerber Johnson & Lyons LLP
90 S. Cascade Avenue, #1100
Colorado Springs, CO  80903
719-386-3004; fax: 719-386-3070
www.rothgerber.com
www.churchstatelaw.com

The information contained in this electronic communication and any document attached hereto or transmitted herewith is attorney-client privileged, work product, or otherwise confidential and intended for the exclusive use of the individual or entity named above.   If the reader of this message is not the intended recipient or the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any examination, use, dissemination, distribution, or copying of this communication or any part thereof is strictly prohibited.  If you have received this communication in error, please immediately notify the sender by telephone or reply e-mail and destroy this communication.  Thank you.

3. Questions from Reclaim News To Nussbaum

The following are questions from Reclaim News to Attorney Martin Nussbaum:

In an email dated March 10, 2004 sent directly to the officers and each member of the Board of Directors of the Synod, attorney L. Martin Nussbaum from Colorado asks several questions concerning the legal opinion issued by the Bryan Cave Law Firm to the Board of Directors. He also communicated directly with each officer and member of the Board of Directors in an email dated February 26, 2004, to which he attached his letter to President Kieschnick dated February 3, 2004.  Because Mr. Nussbaum apparently believes his questions deserve a direct answer, it is certainly safe to conclude that Mr. Nussbaum also would be willing to answer some questions.  Mr Nussbaum, please answer the following questions:

1. 

a. Before you communicate directly with the officers and directors of the Lutheran Church - Missouri Synod, did you consider whether this was a violation of Rule 4.2. of the Colorado Rules of Professional Conduct?
b. Can we assume you are aware that this rule states: "In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so"?
c. Did your email violate this rule?
d. Did you get the permission of the Bryan Cave Law Firm before sending your emails?

2. 

a. Mr. Nussbaum, in your letter you state that you have represented the Lutheran Church - Missouri Synod. Before you sent your email to the members of the Board of Directors and officers of the Synod, did you consider whether representing your secret clients in opposition to the legal representative of the Lutheran Church - Missouri Synod was a violation of
Rule 1.9 of the Colorado Rules of Professional Conduct?
b. Rule 1.9(a) states: "(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation"?
c. Did you obtain the consent of the Board of Directors before agreeing to represent your secret clients?

3. 

a. Mr. Nussbaum, why are you keeping the identity of your clients secret?
b. It has been reported that in a very short period of time after you sent your email publicly, it appeared on the Jesus First website, with comments about your letter. Is Jesus First your client?

4. 

a. Who is paying you Mr. Nussbaum, and how much have you been paid?
b. Is it Jesus First and Daystar?
c. The Board of Directors has reported what it paid, will you?
d. It must have cost an awful lot to pay for your legal services. Was it $20,000, $30,000, $40,000?
e. What drove your clients to pay so much money to have you write your letters?
f. What are they trying to accomplish?

5. 

a. You are asking the Board of Directors to waive the attorney-client privilege that exists to protect the Synod.  Will you waive the attorney-client privilege and tell us all communications you have had with your secret clients?
b. What are your clients hiding?
c. Why do you spend so much of your letter talking about removing directors?
d. What does this have to do with anything other than the unprecedented convention memorial recently circulated by Jesus First?
e. Are you a part of the Jesus First/Day Star political plan to try to take over the Synod by replacing the Board of Directors and then changing the Synod's structure?
f. Is this the real political purpose of your letter?
g. Mr. Nussbaum, why won't you tell us who your clients are, and their real motives?

6. 

a. Mr. Nussbaum, your letter of February 4, 2004 is addressed to President Kieschnick. Why?
b. What other communications have you had with President Kieschnick?
c. Will you make public your first letter to President Kieschnick?
d. What are you hiding, Mr. Nussbaum?

7. 

a. Why did you not direct your letter to the Board of Directors of the Synod?
b. If it truly was the intent of your clients "to assist with clarifying the Synod's polity and governance," why did you go public with your letter without ever trying to discuss the matter with the Board of Directors?
c. Why didn't you send it to the Commission on Structure?

8. 

a. Mr. Nussbaum, you have asked whether the Bryan Cave opinion considered various cases that you cite. Why did you not include in your letter to President Kieschnick a reference to the case of Destefano v. Grabrian and Diocese of Colorado Springs from the Colorado Supreme Court and its holding?
b. Wasn't that a case you personally lost when arguing your view of the First Amendment?
c. When rejecting your arguments, didn't your Supreme Court state that "members of the clergy cannot, in all circumstances, use the shield of the First Amendment as protection and as a basis for immunity from civil lawsuits," and explain that "it is well-established that religious institutions are not immune from tort liability"?
d. How much did the Diocese of Colorado Springs have to pay because you lost your First Amendment argument?
e. How much would the Lutheran Church - Missouri Synod have to pay if it made these types of arguments in court?
f. What other cases are you holding back?

9. Mr. Nussbaum, what is really going on here?