Who Is Counseling Melissa Click?

Assistant Professor Melissa Click, of the University of Missouri Department of Communications, became involuntarily famous as the star of this short video in which she called for “some muscle” to block a student journalist’s access to campus protesters. She was later charged with third degree assault, but the charge was dismissed upon her apology and agreement to perform community service.  She has also publicly apologized.   (Another video later surfaced from a different event, in which Click seems to have interfered with MU police at the Homecoming parade.)

Click was subsequently fired in an unusual (and perhaps unprecedented) action by the University of Missouri’s Board of Curators.  The AAUP has taken up her case on due process grounds, stating that

Normative practice among American institutions of higher education is that a faculty member with indefinite tenure—or a probationary faculty member within the term of appointment—may be dismissed only following demonstration of cause in an adjudicative hearing before a faculty body.

Click’s internal appeal of the Curators’ action was rejected yesterday.  The case is no doubt headed to court

Putting aside the merits of the case, and even the procedures, I want to raise a question about Click’s appeals strategy, in which she evidently walked back much of her earlier apology.  In the opening paragraph of her letter to the Curators, Click states:

In my participation and in my actions on both days I firmly believe I was exercising my protected rights as a United States citizen and a citizen of the State of Missouri. I steadfastly believe it would be a violation of my First Amendment rights and my rights to academic freedom to suggest that my interactions on either day provide grounds for the termination of my employment.

Another of Click’s arguments was equally provocative, in which she all but claimed a right to “impede the [Homecoming] parade’s progress.”

[UPDATE: Here is a link to Click's appeal letter, which I somehow forgot to include in the OP.]

This approach strikes me as doomed from the outset.  The Curators has already determined that Click had interfered with the student journalist, who was trying to take photographs of demonstrators on public property.  She shouted for help removing him, including the infamous call for “some muscle.”  It seems virtually impossible that the Curators would decide that was “protected” by the First Amendment.

Viewed strictly as a tactical problem, Click’s best argument would have been to minimize the severity of the conduct which, after all, accounted for only a minute or two of her twelve year career.  She could have conceded the Curators’ finding of misconduct (without making a further admission), while arguing that a lesser penalty was more appropriate.  That position would have held out a glimmer of hope for success – the original dismissal vote had been 4-2, meaning that she only had to convince one Curator to take it easy on her – while preserving her strongest procedural argument for the eventual lawsuit.

Although she no doubt had counsel, Click signed the letter of appeal herself.  My guess is that her lawyer advised her against taking such an aggressive position, but that Click preferred to make a stand on personal principle. 

How would you handle a client in that situation?

Comments

[Captain Hruska Carswell, Continuance King]

I would make certain that she faces no further criminal liability that would doom her future. In Illinois, she would be looking at a public way felony Aggravated Battery by simply offensively touching another. She might be facing that even if she didn't touch anybody through "accountability." For my defense with the Curators, I would advise mitigation. I would handle it like a criminal sentencing hearing or a driver's license reinstatement hearing after multiple DUI's. I would present character witnesses, letters of support and possibly a psycho-social evaluation. I would have her show remorse and express contrition. Did she have stressors? Was this a one time anger issue or a pattern? I would also advise therapy and anger management classes. There is a lot on the line here. A very good job. I would stay completely away from the Constitution here. Most judges I appear before would laugh and I would loose credibility...."what a wack-a-do lawyer." I would also look into "a plea bargain" or settlement for perhaps a suspension or a suspension of pay. Finally, this is personally important to me as a Solo Practitioner, I would get my fee up front. Maybe 5K. NON-REFUNDABLE if I start working her case up and she changes her mind and insists on martyrdom.

[RQA]

There does not seem to be a link in this post to Click's appeal letter, only to the Board's letter rejecting her appeal. From the Board's decision, it appears she is arguing the true motive for firing her was her political speech (or conduct) generally, not the particular acts of interfering with the student journalist or the parade. That argument would not be inconsistent with a claim that the firing also violated her due process rights as a faculty member. I don't see why both claims couldn't be made, even if the latter were far stronger, and if I had a client who insisted on foregrounding the first claim (which seems weak, but not frivolous), I'd just make sure the second was presented too, As far as I can tell, that's what Click's counsel has in fact done.

[Captain Hruska Carswell, Continuance King]

How do you handle or "control" a client like her? Read her the riot act and tell her that her chances of landing a cushy, middle class gig like this are limited. She needs to grow the hell up pretty quickly or she is going to end up on a substitute Jr. High teacher list or be a part time adjunct at Central Baptist Torah Tech. where she has to recruit her own students. She hit the lotto....can't get any better than what she had. She had too much time on her hands and got too comfortable.

[Steve L.]

Thanks, RQA, it was my error not to have linked the appeal letter. I have now updated the OP to include this link: https://www.umsystem.edu/media/curator/030416_click_appeal.pdf

[Captain Hruska Carswell, Continuance King]

I reviewed the appeal letter you just posted. I think I would pass on her as client. Too much trouble. The problem is that she WANTS justice, not necessarily her job back. A client who wants JUSTICE is a bar beef or malpractice action waiting to happen. Her expectations are way to high and unrealistic. On the other hand, if she can come up with 50K instead of my original retainer amount....I would think about it.

[RQA]

Thank you for linking to the "appeal" (really, reconsideration) letter. I haven't followed the case closely, but I gather the Board is a political entity under considerable pressure to remove Click. If that's so, the initial 4-2 vote, though close, may not be malleable. Whether Click includes a weak First Amendment claim may not make much difference, as long as the due process claim is clearly articulated (as it is). The challenge for a lawyer in this situation arises, I think, out of the client's reputational quandary. Click is trying to clear her name in the proverbial court of public opinion. She probably won't succeed, and this probably isn't the best approach. But I don't think that, as counsel, you should try to suppress completely your client's attempt to tell "her story" in her words unless (a) her doing so will have adverse legal consequences or (b) you can offer a better alternative -- and in this setting, I can't think of one.

[Captain Hruska Carswell, Continuance King]

RQA---You hit the nail on the head. How does a lawyer get a client to shut her mouth.

[[M][@][c][K]]

Years ago when I was but a baby-lawyer, my grandfather and uncle took me to lunch, and over that lunch (which my well know aunt could not attend) they gave me some advice - on clients to turn down.

"Now remember, if a client says these things, first you have to know what they really mean, and then run":

• "'it's the principle of the thing' = the law does not matter and, by the way, you should be taking this pro-bono."
• "'money's no object' = because I'm not going to pay the bill."
• "'it's a really simple case' = no it's not, and you'd better not charge a lot..."
• "'it's a matter of honour' = I have no idea and don't care what the law says..."
• "'it's not about the money' - a civil and business case is almost always about the money and someone who says that is either delusional or lying."
•"'you can't lose' - it's a terrible case, i know it, and I do not plan to pay the bill."

Afterwards I described this to THE AUNT, who was incidentally a younger lawyer than the uncle and grandfather. Her response:

"oh, I remember that talk, they missed one this time - 'I'll fight them to the last drop of blood'; notice the absence of the possessive pronoun..., he/she means your blood."

The aunt, a noted civil rights lawyer, who had many cases where she was acting pro-bono for very poor clients (a 13 year old rape victim who wanted an abortion was the most famous) she also remembered handling a very large and long running divorce, where the wife was made an extremely substantial award (but had been impecunious until the award, her husband having locked up the funds.) Case done, wife now in funds, Aunt presented the bill - the now ex-wife was surprised to receive any bill and responded with the words:

"but I thought you were my friend...."