Board Minutes - February 24, 2012
February 24, 2012
Ameristar Hotel, St. Charles
Lynn Whaley Vogel, President
Patrick B. Starke, President-Elect
P. John Brady, Vice-President
Keith A. Birkes, Secretary
Bevy A. Beimdiek
Thomas V. Bender
Hon. Richard Bresnahan
Robert J. Buckley
Dennis J. Capriglione
Mark W. Comley
Hon. Charles Curless
Dana Tippin Cutler
Joel R. Elmer
Genevieve M. Frank
John W. Grimm
James H. Guest
Richard F. Halliburton
Vincent F. Igoe, Jr.
Hon. James F. Kanatzar
Robert S. Kenney
Hon. John F. Kintz
J. B. Lasater
Mark H. Levison
Neil F. Maune, Jr.
Lauren Tucker McCubbin
Max E. Mitchell
Nancy R. Mogab
Hon. Mark H. Neill
Douglass F. Noland
Joseph P. Rice, III
Brett W. Roubal
Walter R. Simpson
Antwaun L. Smith
W. Douglas Thomson
Raymond E. Williams
Eric J. Wulff
Members present by telephone:
Edward J. Hershewe
Suzanne B. Bradley
John S. Johnston, Past President
Jennifer Gille Bacon
Hon. Richard B. Teitelman
It was moved and seconded that the minutes of the meeting of the Board of Governors of November 18 and the meetings of the Executive Committee meetings of November 18, December 9, January 10, January 27 and February 10 be approved. The motion was approved.
Mr. Erik Bergmanis called attention to the fiscal status report for the period ending December 31, 2011, and reported that The Missouri Bar ended the year approximately $800,000 below budget. He noted that the 2011 budget included approximately $240,000 that was allocated but not expended in case of the need for a public information campaign on the Missouri Non-Partisan Court Plan. He commended Missouri Bar staff for fiscal management.
Mr. Bergmanis reported that the 2012 financials are in good shape as of the first month of 2012. He also reported that the 2012 budget, which was approved at the November meeting, had been modified slightly due to adjustments in the CLE Publications. The modification will result in lowering the 2012 CLE Publications budget by approximately $60,000. He also reported that an e-commerce program is being implemented, and it is uncertain whether the Bar will need to spend the money set aside for the public information campaign related to the Non-Partisan Court Plan during 2012.
Ms. Catherine Barrie reported that a status report on Missouri Bar-drafted legislation and other legislative issues to be considered by the Board was included in the board materials. She noted that a proposed revision to the Board of Governors’ Policy Statement Regarding Legislative Procedures, along with two bar-drafted bills from the Family Law Section will be presented for consideration.
A. Amendment to Missouri Bar Board of Governors’ Policy Statement Regarding
Ms. Barrie called attention to a proposed amendment to the Board of Governors’ Legislative Policy Statement. The proposed amendment would require that if there is any deviation from the deadlines for Missouri Bar committee-drafted legislation set out in the Policy Statement Regarding Legislative Procedures, the proposal must be specifically approved by the Executive Committee prior to being submitted to the Board of Governors. Use of the “Expedited Procedure” for any bar committee-drafted proposal must also be specifically approved in advance by the Executive Committee. It was moved and seconded to approve the proposed amendment to policy. The motion was approved.
B. Proposed Secondary Education Support Order Amendment to Section 452
Mr. Allan Stewart, chair of the Family Law Section, reported on proposed legislation drafted by the Family Law Section that would address the allocation of costs associated with higher education/vocational training beyond high school separate from and/or independent of the determination of child support. The legislation would provide standards for determining eligibility, as well as the extent and duration of post-majority educational support and establish factors to consider in setting the amount and apportionment of costs between parents and/or children. Discussion focused on matters related to interruptions in the child’s education, equal protection challenges, the status of judicial discretion under current Missouri law and disparity regarding rulings on this issue in child support proceedings within the state. It was moved and seconded that the proposed legislation was within scope. The motion was approved by two-thirds of the members present and voting. It was moved and seconded to approve the legislation as drafted. The motion failed to pass by a vote of two-thirds of those present and voting.
C. Special Committee on Termination of Parental Rights in Adoption Post-Adoption Agreements
Mr. Allan Stewart and Professor Mary Beck reported on proposed legislation that would allow adoptive parents to enter into a post-adoption agreement with natural parents to allow them contact with and information about the adoptee and to provide for judicial enforcement of those agreements in Missouri. Discussion included the impact that similar statutes have had on adoptions in other states, the need for a statute making agreements enforceable in Missouri, the potential for increased litigation, issues of contractual rights established under such legislation and how such contractual rights would be balanced against the child’s best interest. It was moved and seconded that the proposed legislation was within scope. The motion was approved by two-thirds of the members present and voting. It was moved and seconded to approve the legislation as drafted. The motion was approved by two-thirds of those present and voting.
D. Executive Committee Positions Regarding Legislation
Mr. Robert Kenney requested clarification regarding the decision of the Executive Committee to take no position regarding SB 592, relating to discrimination in employment. He noted that the language in SB 592 was similar to a bill introduced last year, which the Executive Committee opposed. It was reported that the bill filed the previous year was opposed primarily because it included changes to Missouri Approved Jury Instructions and named specific cases which the legislation, if enacted into law, would have overturned. Those provisions were not included in this year’s SB 592. Additional discussion focused on the current process for the review of bills by the Executive Committee and ratification by the Board, including the process to receive input from within the Bar and from members of the Board of Governors prior to Executive Committee review and action and the process for the distribution of Missouri Bar positions on legislation. Mr. Birkes noted that the Executive Committee has authority to take positions on behalf of The Missouri Bar between meetings of the Board. Those actions are subsequently provided to the Board for ratification and include comprehensive and complete written information regarding the reasons behind actions taken by the Executive Committee. He noted that under this process, the Board can take further action as part of the review and ratification process.
E. Non-Biological Parental Relationships with Child
Ms. Barrie called attention to House Bill 1758, which allows a person having a parent/child relationship with a minor child who is not the biological or legal parent to petition the court for custody and visitation rights. Similar legislation had been previously submitted to the Board as bar-drafted legislation by the Family Law Section but had not received Board approval.
F. Summary of Legislative Positions
Ms. Barrie called attention to a written Summary of Legislative Positions taken by the Executive Committee and copies of position statements approved by the Executive Committee and delivered to sponsors as of February 10. This information was not
included with the agenda material but was distributed to all members at this meeting.
4. Committee Reports:
A. Supreme Court Advisory Committee
Ms. Jennifer Gille Bacon, chair of the Supreme Court of Missouri Advisory Committee, was joined by Mr. Alan Pratzel, Missouri Chief Disciplinary Counsel and Ms. Sara Rittman, Missouri Ethics Counsel, to report to the Board of Governors about a draft proposal to change Rule 5.31 to open public access to information in the attorney disciplinary process at an earlier stage. It was reported that the action was prompted by a 2001 ABA evaluation and report on Missouri’s attorney disciplinary system. Ms. Bacon noted that the ABA report included a number of recommendations and other actions of which many have already been adopted and implemented.
It was reported that, under the current process, formal allegations pending against an attorney only become public once an Information has been filed, an evidentiary hearing has been held and a hearing panel’s recommendation of discipline has been filed with the Supreme Court of Missouri. The proposed rule change will open the pending action against an attorney once an Information has been filed and the attorney has filed an Answer. It was noted that once the process reaches the filing of a formal allegation against an attorney, very few actions result in dismissal. Consequently, the proposed change would bolster the protection of the public by allowing OCDC to provide information about formal allegations pending against an attorney to members of the public, including prospective clients, who are seeking information about an attorney’s disciplinary history at the earlier stage.
The Advisory Committee representatives noted that their report is intended to provide information regarding the recommended change to the Board of Governors and to obtain comments and input before the proposed rule change is submitted to the Supreme Court of Missouri for a decision.
Further discussion focused on the number of lawyers within the state who receive disciplinary action at this level; issues related to the impact that earlier public access to formal allegations may have on a lawyer’s practice, if allegations are later dismissed; clarification of the steps in the disciplinary process; and whether the disciplinary information will be disseminated upon specific request or disseminated generally. It was moved and seconded to support the report of the Advisory Committee of the Supreme Court of Missouri. The motion was approved.
B. Judicial Performance Evaluation Committees
Mr. Dale Doerhoff provided a thorough review and status report on the 2012 Missouri Judicial Performance Evaluation process. He provided an extensive historical overview of the Judicial Performance Evaluation process, which was established by Supreme Court of Missouri Rule 10. He also provided a review of the early decisions related to Missouri Bar funding for the process; composition and appointment of the members of evaluation committees; the administration process of JPE; and the duties of the appointed JPE committees. He outlined the survey information collected and noted new information added to JPE in 2012, including the addition of comments on juror surveys and peer review by judges.
He reviewed information about the appointment of committee members for 2012, noting that the committee members serve without pay, only receiving reimbursement for expenses to participate, and outlined the timing and method for the release of results in September. He concluded his report with a focus on evidence indicating the value and impact on voters, including statistical data showing the number of website inquiries and data indicating an increase in the number of voters who complete the entire ballot in voting districts where Missouri judges are standing for retention election.
C. Special Committee on Pro Hac Vice Recommendation Related to Rule 9.03
Ms. Lynn Whaley Vogel reported that the Special Committee on Pro Hac Vice, at the request of the Board of Governors, explored the need for changes to Rule 9.03 related to the responsibilities of members of The Missouri Bar who are appointed as designated counsel. She reported that the committee first consulted with The Bar Plan regarding the implications that the proposed changes would have on attorneys. Ms. Vogel reported that the Special Committee recommends that Rule 9.03 be amended to read that: “The designated attorney shall enter an appearance as an attorney of record, sign all pleadings, briefs and other documents, and be present at all hearings or as otherwise directed by the court.” It was moved and seconded to submit the recommended amendment to Rule 9.03 to the Supreme Court of Missouri. The motion was approved.
D. Client Security Fund Committee Report
Mr. Chris Janku reported that the Client Security Fund Committee recommends the payment of $38,621.65 for three claims. The committee also recommends the payment of and an additional $500 on a $1,500 claim that had been approved by the Board of Governors during the November 18, 2011, meeting of the Board of Governors. Mr. Janku reported that the committee is also recommending the denial of one claim and deferral of action on five claims. He reported that the balance of the Client Security Fund as of January 1, 2012, was $425,721.16, including $214,000 appropriated as part of the 2012 budget.
Mr. Janku further reported that the Client Security Fund Committee has begun its review regarding the possibility of employing private legal counsel to seek recovery of money from attorneys against whom claims have been paid by the Fund. He reported that the committee is including an analysis of actions and methods employed by other states to recover such money and anticipates that the committee will submit recommendations to the Board of Governors regarding this issue at a future meeting. It was moved and seconded to authorize payment of the new claims, the additional allocation of funds for the previous claim and the denial of claims as recommended. The motion was approved.
E. Committee on Lawyers in a Changing Economy Report
Mr. Ray Williams reported that the Committee on Lawyers in a Changing Economy is requesting that the Board approve the endorsement of CoreVault as a member benefit offering cloud backup and recovery services for Missouri lawyers. He reported that the committee has researched the company as a source that can provide a safe harbor for lawyers interested in utilizing cloud technology and negotiated a reasonable monthly fee available to members of The Missouri Bar. It was moved and seconded to endorse CoreVault as a new member benefit. The motion was approved.
Mr. Williams also reported on a committee proposal to develop and deliver educational podcasts focusing on practical skills related to a variety of substantive areas of law for Missouri lawyers. He reported that the podcasts would follow a “nuts and bolts” model, providing content in a very simple and direct delivery style and members of The Missouri Bar would have access at no charge. He noted a need for such educational materials, citing an increase in the number of lawyers entering solo practice as a result of the current economy and the discontinuance of The Missouri Bar’s Mentoring Program. Mr. Williams provided a demonstration of a podcast. He further noted that the podcasts will not compete with MoBar CLE programming, because they will be less than 50-minutes in length and not qualify for CLE credit. It was moved and seconded to authorize expansion of the development and delivery of educational podcasts as outlined above. The motion was approved.
F. Joint Elder, Probate, Hospital and Solo Committees Recommendation
Mr. Keith Birkes reported on a joint proposal of four Missouri Bar committees – Elder Law, Probate and Trust Law, Health and Hospital Law and Solo & Small Firm – regarding Missouri Bar participation in the National Healthcare Decision Day on April 16. He reported that the Bar’s participation would include engaging in publicity for NHDD with media contacts and within Missouri Bar publications and promoting the newly revised Missouri Bar Durable Power of Attorney for Healthcare form. It was moved and seconded to approve participation in the National Healthcare Decision Day. The motion was approved.
G. Committee Liaison Reports
(1) Gender & Justice Committee
Ms. Bevy Beimdiek reported that the Gender and Justice Committee is planning to conduct a survey during the current calendar year to follow up on a previous survey that was conducted in 1993. Ms. Beimdiek indicated that the committee is planning to request funding for the 2012 survey from The Missouri Bar.
(2) Business Law Committee
Mr. Tom Bender reported that the Business Law Committee is very active and doing a good job. He reported that the committee recently worked with The Missouri Bar to develop an institutional ad illustrating how lawyers can help businesses grow. The committee was also active in reviewing legislation including proposals to make changes affecting securities law and Section 431.030 regarding changing the statute of limitations related to contracts. He reported that the committee is engaged in an effort to update forms on The Missouri Bar website. They are also planning to work with the Secretary of State’s office to ensure that the many forms found on the state agency’s site are accessible through The Missouri Bar website, improving ease of access to information for lawyers. They will also be looking into the emerging concept of a hybrid for profit and not-for-profit corporate structure – public benefit corporation – and its application in Missouri.
(3) Legal Education Committee
Mr. Erik Bergmanis reported that this committee is working with CLE Publications to improve the market demand for Missouri Bar deskbooks as well as addressing ongoing efforts related to CLE programs.
(4) Travel Committee
Mr. Bergmanis reported that James Cook continues to do an excellent job working with the travel provider Go Next Travel to offer valuable travel opportunities to members of The Missouri Bar.
(5) Legislative Committee
Mr. Jack Brady reported that the Legislative Committee continues to assist The Missouri Bar’s legislative staff in the ongoing effort of identifying, reviewing and taking necessary steps to bring bills involving the administration of justice to the Executive Committee and Board of Governors for analysis and action.
(6) Division of Judicial Administration
Hon. Richard Bresnahan reported that this committee focuses on issues in relation to attacks on the Non-Partisan Court Plan and on the administration of justice as they arise. Judge Bresnahan expressed thanks, on behalf of the judiciary, for the hard work and support of The Missouri Bar Board of Governors and this committee in relation to defending the non-partisan selection process.
(7) Health and Hospital Law Committee
Mr. Robert Buckley reported that this committee is extremely active. He noted that two recent examples of this include the presentation of a HIPPA program at their November committee meeting and their collaborative work with the Elder Law, Probate & Trust Law, and Solo and Small Firm Committees to update The Missouri Bar’s Durable Power of Attorney for Health Care Decisions and efforts to participate in National Healthcare Decisions Day on April 16.
(8) Commercial Law Committee
Mr. Dennis Capriglione reported that this is a very active committee focusing their efforts in the area of bankruptcy law. He reported that committee drafted legislation endorsed by the Board of Governors in November had a hearing in the House recently and is expected to be voted on soon. He noted that the committee was grateful for the Board’s support of that measure. He also reported that they are working on an effort to require the recording of deeds of trust, noting that the lack of recording impacts bankruptcy matters. Mr. Capriglione further reported that the committee is very active in providing CLE at its committee meetings, and plans are already under way for educational programs at both the Spring and Fall Committee Meetings.
(9) Labor and Employment Law Committee
Mr. Mark Comley reported that the chair and vice-chairs met to decide on objectives for 2012. He noted that the committee plans to explore the possibility of presenting a day-long symposium in the fall, perhaps around the time of the Fall Committee Meetings. He reported that the committee is planning a two-hour CLE for the Spring Committee Meetings focusing on new NLRB regulations affecting labor and employment areas. Other objectives include encouraging better use of the listserver by members of the committee and work is under way with Missouri Bar staff to develop a committee webpage, committee e-newsletter and to update committee-related Missouri Bar publications including the labor and employment law related deskbook.
(10) Professionalism Committee
Mr. Brett Roubal reported that this committee has a new chair, Mr. Mike Gibbons, and it is in the process of developing its objectives for this year that will include reaching out to law schools regarding the promotion of professionalism education, which may involve efforts related to law school curriculum.
A. January Appointments
(1) Board District #9 Vacancy
After multiple rounds of voting, the Board of Governors elected Mr. John Gunn to fill the current vacancy in District 9 (St. Louis County). The vacancy was created by the death of Carol Chazen Friedman.
(2) The Appointment of the Next Executive Director of The Missouri Bar, Effective
January 1, 2013
Deputy Executive Director Sebrina Barrett provided a report to the Board regarding her tenure as deputy executive director, including a brief overview related to areas of management, budget and finance, policy issues and initiatives. Ms. Barrett briefly reviewed a number of major project management initiatives and responsibilities during her tenure including bar center property improvement/expansion research and analysis, IT ecommerce development, social media presence, and website redesign. She also briefly reviewed activities regarding Pro Hac Vice analysis and recommendations, the evaluation of the Mentor Program, Missouri Bar Foundation development, Missouri Bar staff transition and hiring and statewide presentations to local and specialty bar associations with President Lynn Whaley Vogel.
Ms. Barrett complimented the professionalism, skill and dedication of The Missouri Bar staff and thanked the Board of Governors for their support during her tenure and for providing her with the opportunity to serve as deputy director. She specifically thanked Keith Birkes for his generosity in providing for a two year transition period and sharing his knowledge and guidance during this transition period.
Following Ms. Barrett’s remarks, the Board of Governors went into executive session to receive and consider the recommendation of the officers of The Missouri Bar regarding the hiring of Ms. Barrett as the next executive director. It was moved and seconded to approve the recommendation to hire Ms. Barrett as executive director, effective January 1, 2013.
B. May Appointments
(1) Fee Dispute Resolution Committee
Mr. Keith Birkes reported that the terms of Mr. Gary Stamper and Ms. Betty Preston are expiring. Mr. Stamper is eligible for reappointment and Ms. Preston is not eligible for reappointment. He called attention to a roster of the membership of the committee and encouraged member of the board to provide any suggestions regarding possible appointments.
6. Officers’ Reports:
A. President’s Report
(1) Non-Partisan Court Plan
Ms. Lynn Whaley Vogel reported that a very serious attack against the Non-Partisan Court Plan is under way and indications are that this effort is being funded by
out-of-state sources. She called attention to a list of Missouri legislators distributed with the board meeting materials and asked members of the Board of Governors to identify and contact their specific legislators and other legislators who they know to initiate a grassroots effort to educate members of the General Assembly about the value of the Non-Partisan Court Plan as the least political way of selecting judges within the state. Ms. Vogel stressed the importance of educating other citizens as well and garnering broad community support within the state for an independent judiciary.
(2) Criminal Code Legislation
Ms. Vogel reported the progress of proposed bar-drafted legislation to revise Chapters 556-558 of Missouri’s Criminal Code. She reported that the bill has been well received and the objective will be to have the proposed legislation filed during this year’s session. She noted that the measure is quite comprehensive, totaling approximately 900 pages, and these factors may impact how quickly it progresses once introduced. Ms. Vogel reported that Rep. Stanley Cox and Sen. Jolie Justus are expected to sponsor the measure. She further reported that Sen. Schaefer was incorrectly identified as a sponsor in her recent article in the Journal of The Missouri Bar.
(3) Local & Specialty Bar Association Presentations
Ms. Vogel commented on presentations that she and Deputy Executive Director Sebrina Barrett have been making at local and specialty bar associations throughout the state. Ms. Vogel noted that the presentations are very valuable, offering the opportunity to interact with the members and leadership of the local and specialty bars to share ideas, receive feedback and build strong relationships.
(4) Advisory Committee to the Supreme Court
Ms. Vogel reported that the Advisory Committee to the Supreme Court of Missouri has recommended that a Senior Lawyer Council be reinstituted. She noted that 40 percent of the lawyers in The Missouri Bar are now 55 years-old or older and cited a range of age-related issues expected to impact the profession. She reported that a Senior Lawyer Council has been reconstituted and that Marvin “Bunky” Wright and Robert Clayton will co-chair the Senior Lawyer Council.
(5) Committee to Review Tort Committee Legislation
Ms. Vogel reported that a board committee has been established to review tort related legislation. She reported that the committee was created to be of limited size with a plaintiff and defense attorney composition so as to provide the Executive Committee with balanced feedback and perspectives more quickly than is possible under the current legislative review process. She reported that Nancy Mogab and Wallace Squibb have been appointed as co-chairs. The committee members are: Robert Buckley, John Grimm, Tom Bender, and Ed Hershewe.
(6) Annual Meeting of The Missouri Bar
Ms. Vogel reported that planning is under way for the 2012 Annual Meeting, which will be held at the St. Louis Hilton Ballpark in October. She reported that the full planning committee met earlier in February and the conference development is under way. She further reported that the site for the Best of Missouri reception will be the Peabody Opera House.
B. President-Elect’s Report
President-Elect Pat Starke reported on planned efforts to mobilize members of the Board of Governors and others in support of the Non-Partisan Court Plan. He requested that members of the board review the list of legislators in their particular area and identify any whom they know. He asked members to make direct contact with the legislators they know and ask for their support against attacks on the Non-Partisan Court Plan.
He also reported on an initiative to enlist the support of the Chambers of Commerce and the business community throughout Missouri for the Non-Partisan Court Plan, including requesting their support through a letter writing effort to members of the General Assembly.
C. Vice-President’s Report
D. Deputy Executive Director’s Report
Ms. Sebrina Barrett reviewed issues and challenges facing The Missouri Bar’s Mentoring Program, including the challenges in identifying, recruiting and establishing mentor relationships. She reported that it is the recommendation of the Executive Committee that the program be discontinued in its current form. She also reported efforts would continue to phase out the mentor applications that are currently in progress. She further reported that a webpage has been established on The Missouri Bar website to provide lawyers with resources related to practice issues that were typically addressed in the mentoring program. She also noted that many local bars currently maintain active mentoring programs and these programs appear to work better on a local, rather than a statewide basis.
E. Executive Director’s Report
(1) Recognition of Retiring Missouri Bar Staff Directors
Mr. Keith Birkes and the Board of Governors recognized two staff members – Media Relations Director Jack Wax and Missouri Lawyers’ Assistance Program (MOLAP) Director Jim Brady – who will be retiring later in the year and are attending their last board meeting. Both staff members were commended for their work and dedication to The Missouri Bar.
(2) Report on Lawyer-to-Lawyer Dispute Resolution, Complaint Resolution and Fee Dispute Resolution Programs
Mr. Birkes provided a brief report on the status of the Lawyer-to-Lawyer Dispute
Resolution Program, the Complaint Resolution Program and the Fee Dispute Resolution Program, calling attention to written reports provided in the board materials.
(3) Additional Board Meeting Activities
Mr. Birkes also summarized additional activities planned in conjunction with the board meeting, including the dinner being held at the Bellerive Country Club and the afternoon activities arranged for the Board.
7. Review of Strategic Plan Goals:
Ms. Lynn Whaley Vogel reported that due to time constraints, the six groups of board members and
staff assigned to review the goals and objectives of each section of the Missouri Bar Strategic Plan would conduct one or more conference calls before the July board meeting. The chair of each group will report on the status of the goals and objectives at the July meeting.
There being no further business, the meeting was adjourned.
Keith A. Birkes, Secretary