Board Minutes - July 25, 2003

Big Cedar Lodge, Ridgedale

Members Present:
Dale C. Doerhoff, President
William M. Corrigan, Jr., President-Elect
Joe B. Whisler, Vice-President
Theresa L. F. Levings, Past President
Keith A. Birkes, Secretary

C. Ronald Baird
Erik Bergmanis
Richard N. Bien
Joseph C. Blanton, Jr.
Thomas M. Burke
Scott Campbell
Thomas J. Casey
Morry S. Cole
Richard J. Collins
Douglas A. Copeland
John Cowherd
Cathy J. Dean
Carol Chazen Friedman
Chad A. Gaddie
Mike Greenwell
Richard F. Halliburton
Charlie J. Harris
Hon. Don M. Henry
Bruce F. Hilton
Vincent F. Igoe, Jr.
John S. Johnston
George E. Kapke
Hon. John F. Kintz
Thomas M. Lang
Mark H. Levison
Karen R. McCarthy
Jack Peace
Daniel A. Raniere
John A. Ruth
Daniel J. Ryan
Wallace Squibb
F. Dianne Taylor

Members Absent:
P. John Brady
Richard Bresnahan
Max E. Mitchell
Hon. Daniel Pelikan
Richard G. Steele
H.A. Skip Walther

Also Present:
James E. Spain
Millie Aulbur
Catherine Barrie
Cecil Caulkins
Carla Counsil
Wayne Greer
Kent Hopper
Jim Howard
Chris Janku
Dan Lehmen
Stephen Murrell
Linda Oligschlaeger
Delores Shepherd
Gary Toohey
Jack Wax

1. Minutes:

It was moved and seconded that the minutes of the meetings of the Board of Governors of May 9 and of the Executive Committee of May 9 be approved. The motion was approved.

2. Finance Committee Report:

Mr. Burke reported that the Bar is in good financial condition, with year-to-date receipts at 88% and disbursements at 50%. We are in the 10th year since our last dues increase. Mr. Burke further reported that the Bar has received the audit report from Williams-Keepers, and we received a good report. We will be soliciting audit bids this year for the next audit.

Mr. Burke also reported that the Annual Meeting is still in development, but the Finance Committee has produced a budget for the meeting and seeks approval from the Board. It was moved and seconded that the budget for the Annual Meeting be approved. The motion was approved.

Mr. Burke further reported that, in our banking, we work with Central Bank of Jefferson City. From time to time, the bank needs to have approval of procedures that presently require the approval of the Board. The Finance Committee seeks the Board's authority to review and approve such requests from Central Bank when they arise. It was moved and seconded that the Finance Committee be so authorized. The motion was approved.

Responses of the four Legal Services organizations in Missouri to Mr. Doerhoff's letter of July 2, 2003 regarding accounting for legal services funding have been received and were provided to Board members.

3. Legislation:

Catherine Barrie reported that three legislative proposals have surfaced for the 2003 legislative session: a major revision of the trust code, changes in bankruptcy exemptions, and funding for legal services.

Mr. Doerhoff discussed the various tort reform proposals that surfaced during the legislative session this year and explained the various reasons The Missouri Bar chose to stay away from these proposals, including Keller v. State Bar of California, 496 U.S. 1. There was some discussion of equal access to justice and the Bar's role in these issues. The Bar studied tort reform and the questions involved, without taking sides, some years ago by means of a blue ribbon commission chaired by Judge Orville Richardson. Mr. Doerhoff appointed a special Board committee to study the equal access to justice issues involved in the tort reform proposals. The committee will be chaired by Mr. Igoe and include Messrs. Blanton, Cole, Johnston, Levison, and Raniere.

4. Committee Reports:

1. Rules of Professional Conduct.

Jim Spain reported that, following the last Board meeting, the Ethics 2000 Committee had again studied proposed Rule 4.2. The issue is talking to the other side's client. But what about former employees? Comment 7 of the ABA proposal says "yes." In the end, the Committee voted to recommend adoption of Rule 4.2 as written but recommends amendments to comments [5], [6], and [7].

Mr. Casey pointed out that MATA supports the rule but opposes the Committee's proposed amendment to comment [7]. After considerable discussion of the issues, it was moved and seconded that comment [7] be redacted to remove the proposed amendment. The motion was approved. It was then moved and seconded that the Committee's recommendation be approved, as amended. It was then moved and seconded to amend the motion by restoring the redactions to comment [7] as to the attorney-client privilege portion. The motion to amend failed. The main motion was called, and the motion was approved.

2. Client Security Fund Committee.

Mr. Janku reported that the Committee had held hearings in June and had conducted telephone hearings prior to that time. The Committee recommends that a payment of $4,227.30 be made immediately to Mr. John Stouffer on a claim. It was moved and seconded that the claim be paid. The motion was approved.

3. MCLE.

Mr. Janku reported that online MCLE filing is now available and is being used by Bar members. In order to make MCLE Regulation 15.06 consistent with the online reporting implemented this year, it should be amended in accordance with the proposed new language included with the Board agenda. The amended regulation would then be sent to the Supreme Court of Missouri. It was moved and seconded that the amendment be approved. The motion was approved.

4. YLS Council.

Mr. Cole reported that the YLS currently has two big projects they are working on: "Crossing the Line," a booklet for high school students to make them aware of their rights and responsibilities after high school, and "Junior Judges," a program for elementary school students aimed at teaching mediation and conflict resolution. The YLS Council has selected this year's recipients of the Cochran Award. The YLS social event at the Annual Meeting this year will be held at the Blue Note in Columbia, and 150 tickets are available.

5. Alternate Billing Methods.

Mr. Baird reported that the committee has been meeting and working on the gathering and analysis of data received from the online survey. A presentation was made at the Solo and Small Firm Conference, and there will be more information forthcoming.

6. Conflicts of Interest.

Ms. Levings reported that her Committee had developed recommendations for a policy to be adopted by the Board of Governors as to conflicts of interest. There was considerable discussion regarding the ramifications of the proposal. It was moved and seconded that the matter be tabled until the October meeting to allow Board members more opportunity to study the proposal. The motion was approved.

7. Predatory Advertising.

Mr. Birkes reported that Mr. Walther's Committee had developed some proposed language to be added to Rule 4-7.2. The new language would be subparagraphs (d), (e), (f), and (g). The Committee studied similar rules in other states, Texas in particular, and suggests this language for the Board's approval. It was moved and seconded that the proposed new subparagraphs be approved for submission to the Supreme Court of Missouri. The motion was approved.

8. Executive Committee.

Mr. Doerhoff explained that the process of developing a new statewide entity for legal services in Missouri had reached the stage where it was time to select directors for the statewide board. Recommendations were sought from bar associations and others throughout the state, and a number of recommendations were received. The Bar will be appointing seventeen members to the board. The list of nominees proposed by those responding to Mr. Doerhoff's solicitation was provided to the Board. It was moved and seconded that the nominees be appointed to the statewide legal services board. The motion was approved.

Mr. Doerhoff further reported on the status of the filing fee surcharge funding mechanism. The surcharge money will be collected beginning August 28. The Legal Services Corporation has extended by one year the deadline for the full operation of the Missouri statewide legal services entity as a recipient for LSC funding, so the funds will not be disbursed to that body. That leaves open the disposition of funds collected from August 28 through June 30, 2004. It was moved and seconded that the surcharge funds collected be distributed to the four existing legal services programs and allocated based on the poverty population in each program's service area as determined by the last census. The motion was approved.

9. Complaint Resolution Committee.

As required by Supreme Court Rule, the Board was furnished with a report on the operation of the Complaint Resolution Program. No action was taken.

5. Appointments:

Mr. Doerhoff reported that John Greider is a member of the Alcoholism Intervention Committee whose term is expiring, who is eligible for reappointment, and who is willing to serve another term. It was moved and seconded that Mr. Greider be appointed for an additional term. The motion was approved.

6. Officers Report:

1. Executive Director's Report.

Mr. Birkes reported that the ballots for the Board election had been mailed, and the votes will be tallied on August 15. The results will be provided to Board members as soon as can be done. There will be some transition on the Board if only because there are several districts where an incumbent is retiring and there is no contest as to a successor. The orientation for new Board members will be held on September 5 at the Bar Center, along with new members of the YLS Council and the Leadership Academy.

Mr. Birkes further reported that Access, a new quarterly publication, has been sent out to libraries, chambers of commerce, and businesses with 100 or more employees all over the state.

Mr. Birkes further reported that the Board will meet next on October 1 beginning at noon, a time when we will not be conflicting with other activities at the Annual Meeting.

2. Vice-President's Report.

Mr. Whisler reported that the pro bono luncheons were successful. In the near future, Missouri Lawyers Weekly will survey the larger Missouri law firms about their pro bono participation, so we should get some better and more complete information from that source.

3. President-Elect's Report.

Mr. Corrigan reported that the Board Retreat would be held Saturday morning, beginning at 8:00 a.m. and ending by noon. Breakfast will be available beginning at 7:30. Maurice Graham, Larry Tucker, and Dudley McCarter, past Bar Presidents, have agreed to moderate three breakout groups, which will meet after a brief plenary session to consider issues identified by Board members in their responses to a survey previously sent out. Ms. Friedman and Messrs. Blanton and Bien will serve as reporters for the three groups. The Board will convene in plenary session to hear reports. The agenda for the Retreat is included in the agenda materials provided for the Board meeting.

4. President's Report.

1. ABA House of Delegates.

Mr. Doerhoff reported that among the issues to be considered by the ABA House of Delegates at their August meeting are two as to which proponents have asked for Missouri Bar support. The Ohio State Bar Association has a simple proposal urging each jurisdiction that regulates the practice of law to continue to define what constitutes the practice of law by case law decisions of its highest court. It was moved and seconded that The Missouri Bar join in supporting this proposal. The motion was approved.

In addition, the ABA's Standing Committee on Law and National Security asks the Bar's support for a resolution relating to attempts by other nations to exercise war crime jurisdiction under international law against uniformed military personnel of the United States. No action was taken on the matter.

2. 2003 Annual Meeting.

Mr. Doerhoff reported on plans for the Annual Meeting, which are outlined in the promotional brochure provided with agenda materials and a program update providing details on all the activities scheduled for the Annual Meeting.

3. Image of Lawyers.

Mr. Doerhoff reported on his discussions with lawyers throughout the state as part of his "Dialogue on Justice," which has taken him to bar associations all over the state. As a result of talking to many members, Mr. Doerhoff concluded that an "issues" book would be a very helpful resource for Board members and others in understanding what challenges the legal profession faces and what The Missouri Bar is doing to meet those challenges. One continuing effort regarding the image of lawyers is the institutional advertising campaign involving radio and television spots. Jack Wax played two of the video public service announcements for Board members.

4. 2003 Spring Storm Legal Assistance Project.

Mr. Doerhoff reported on the 2003 Spring Storm Legal Assistance Project, details of which are set out in a report provided with the agenda materials.

5. Media Contacts.

Mr. Doerhoff reported on the Bar's media contacts, summarized in a report included with the agenda materials.

There being no further business, the meeting was adjourned.

Respectfully submitted,

Keith A. Birkes, Secretary