Board Minutes - January 16, 2004

Bonita Springs, Florida

 

Members Present:
William M. Corrigan, Jr., President
Joe B. Whisler, President-Elect
Douglas A. Copeland, Vice-President
Dale C. Doerhoff, Past President
Keith A. Birkes, Secretary
C. Ronald Baird
Erik Bergmanis
Richard N. Bien
Joseph C. Blanton, Jr.
P. John Brady
Thomas M. Burke
Morry S. Cole
Richard J. Collins
Dana Tippin Cutler
Sherry Doctorian
Carol Chazen Friedman
Mike Greenwell
Richard F. Halliburton
Charlie J. Harris
Bruce F. Hilton
Vincent F. Igoe, Jr.
John S. Johnston
George E. Kapke
Hon. John F. Kintz
Thomas M. Lang
William J. Lasley
Mark H. Levison
Karen R. McCarthy
Max E. Mitchell
Daniel A. Raniere
Daniel J. Ryan
Allan D. Seidel
Robert H. Shaw
Wallace Squibb
Richard G. Steele
F. Dianne Taylor
H.A. Skip Walther
Eric J. Wulff
Members Absent:
Richard Bresnahan
Thomas J. Casey
Chad A. Gaddie
Hon. Don M. Henry
John A. Ruth
Also Present:
Cecil Caulkins
Chris Janku


1. Minutes:  


It was moved and seconded that the minutes of the meetings of the Board of Governors of November 21, 2003 and of the Executive Committee of November 21 and December 12, 2003 be approved. The motion was approved


2. Legislation: 


Mr. Corrigan directed the attention of Board members to a report on Bar-drafted legislation that was included with the agenda materials. No action was taken.

3. Finance Committee Report:  


Mr. Burke reported that the Bar had a very good 2003 and is in sound financial condition. A narrative summary of the end-of-the-year financial situation was distributed to members. It was moved and seconded that the budget be amended to reflect actual receipts and disbursements for the 2003 financial year. The motion was approved.

4. Committee Reports: 


A. YLS Council.

Mr. Cole reported that the YLS had initiated a program to raise money for the Giving Tree in outstate Missouri. So far, $14,000 has been collected and distributed. 


B. Legal Services.  


Mr. Doerhoff referred Board members to copies of correspondence included with the agenda materials. The statewide program appears to be moving forward. No action was taken. 


C. A. Retention of Clients' Files.  


Mr. Blanton reported that the committee proposes an addition to Missouri's Rules of Professional Conduct to add a new subpart (h) to Rule 4-1.15, as follows:
Absent other arrangements between a lawyer and client, upon completion or termination of the representation, a lawyer shall securely store a client's file for ten years. If the client does not request the file within ten years after completion of termination of the representation, the file shall be deemed presumptively abandoned by the client and may be destroyed. A lawyer shall not destroy a file pursuant to this Rule if the lawyer knows or should reasonably know that: 


1. A legal malpractice claim is pending related to the representation;


2. A criminal or other governmental investigation is pending related to the representation;


3. A complaint is pending under Rule 5 related to the representation; or


4. Other litigation is pending related to the representation.


Items in the file with intrinsic value shall never be destroyed. A lawyer destroying a file pursuant to this Rule shall securely store items of intrinsic value or deliver such items to the state unclaimed property agency.


Comment  


This Rule does not change the longstanding position that the file is the property of the client, but merely attempts to balance that property interest against the lawyer's burden of indefinitely storing the client file in a representation where there is not a prior agreement on the length of time the file will be retained by the lawyer.


While there is no requirement of a written agreement between the lawyer and client addressing the disposition of the file, it is encouraged that the issue of the lawyer's file retention policy be addressed at the inception and conclusion of the attorney-client relationship. This Rule does not establish a maximum time period the lawyer may retain the file by agreement between the lawyer and the client.
If the lawyer desires to make a copy of the file for the lawyer's use, the lawyer shall bear the cost of making the copy. If a client requests the file the lawyer shall make the file available to the client. If the client requests that the lawyer deliver the file, the lawyer may require prepayment of actual mailing or shipping costs.


It was moved and seconded that the proposed Rule and comment, in the form recorded above, be submitted to the Supreme Court of Missouri for consideration. The motion was approved.


D. Client Security Fund.  


Chris Janku reported that the Committee has completed action on 2003 claims and is recommending the approval of payment on 86 claims in a total amount of $169,986.07 and is recommending the denial of 32 claims. It was moved and seconded that the report be approved. The motion was approved.


E. Corporate Pro Bono Program  


Ms. McCarthy reported on the efforts to develop a corporate pro bono program and on the survey of in-house corporate lawyers. The Committee will report further at the May meeting.


F. Advertising.  


Mr. Levison reported on the activities of the Committee, including a CLE presentation at the Wednesday session of the Mid-Year Seminar. The Committee will report further at the May meeting.


G. Lewis and Clark.  


Mr. Ryan reported on an extensive list of activities related to the observance of the Lewis and Clark Bicentennial. The Committee will report further at the May meeting.


H. Status of the Tort System.  


Mr. Igoe reported that the Committee continues to monitor the status of bills that might be filed. The Committee is expecting three bills that have not as yet been filed. The Committee will continue to monitor the process, meet as needed, and report further at the May meeting.


I. Bylaws Committee.  


Mr. Baird discussed the report of the Committee, included with the agenda materials, which would amend the bylaws to change the time of election of officers. It was moved and seconded that the bylaws be so amended. The motion failed.


J. Law Student Loan Repayment Assistance Program.  


Ms. Doctorian reported on the activities of the Committee to date and will report further at the May meeting.


5. Officers Report:  


A. Executive Director's Report. 

 
1. OCDC Funding
.


Mr. Birkes explained for Board members the organization and structure of the disciplinary system, which includes both OCDC and the Advisory Committee.


2. Public Defender Funding Issues.  


Mr. Birkes further reported the Public Defender Commission is concerned about the size of the caseload of its trial-level defenders, which is considerably larger than in other states. One response the Commission is considering is to refuse to take misdemeanor cases, which would cause private lawyers to be appointed instead. The situation will be followed closely.


3. Annual Reports.  


Mr. Birkes further referred Board members to reports from MOLAP and from the Complaint Resolution Program.


B. Vice-President's Report.  


Mr. Copeland reported he will begin considering locations for the 2006 Mid-Year Seminar and invited Board members to provide him with suggestions as to a venue for the meeting.


C. President-Elect's Report.  


Mr. Whisler reported that the 2005 Mid-Year Seminar will be held at the Hyatt Regency Lake Las Vegas resort, a property located on the shores of Lake Las Vegas 17 miles from the Las Vegas Strip. The Board viewed a video presentation on the amenities of the resort.


D. President's Report. 

 
1. Law School for Legislators.  


Mr. Corrigan reported that this event is ready to go, and it appears that participation will be good. Among those taking part will be Professor Fischer, who will explain the tort system to the attendees. Board members who are able to do so are encouraged to attend the program and the reception following.


2. State Funding for the Judiciary.  


Mr. Corrigan reported at some length on efforts to secure adequate funding for the court system. The Board viewed a PowerPoint presentation highlighting both the financial needs of the court system and the problems to Missourians if the courts are not adequately funded. This presentation, which will be provided to each Board member via the listserv, will be made around the state of Missouri during a two-week media tour commencing January 20. Mr. Corrigan also directed Board members to press coverage in the St. Louis and Kansas City newspapers of the funding crisis.

 
3. Funding for the Office of Chief Disciplinary Counsel.  


Mr. Corrigan reported on meetings with Maridee Edwards and discussions with the Supreme Court regarding funding for OCDC and the Board's opposition to the proposed $25 increase. The Court has expressed its willingness to hear comments from the Board on this issue. The Finance Committee will carefully study the information received from OCDC and will report further to the Board at the May meeting.


4. Recently Adopted Amendments to the ABA Model Rules.  


Mr. Corrigan referred Board members to extensive information included with the agenda materials and reported that this matter will be considered at the May meeting.


5. Missouri Bar Annual Meeting.


Mr. Corrigan reported that plans are proceeding well for the Annual Meeting, and we will be involving the law schools to the greatest extent possible.


6. Proposed Committee on Uniform State Laws.


Mr. Corrigan referred Board members to a letter from Commissioner Timothy Heinsz, formerly dean of the UMC School of Law, that the Bar consider a new committee on uniform laws. No action was taken.


7. Corporate Counsel Meetings.  


Mr. Corrigan reported on meetings in St. Louis and Kansas City.


8. Lawyers in the Legislature.  


Mr. Corrigan reported that he had heard from seventeen lawyers who are considering running for seats in the General Assembly.


There being no further business, the meeting was adjourned.


Respectfully submitted,


Keith A. Birkes, Secretary