Board Minutes - May 7, 2004


Capitol Plaza Hotel, Jefferson City

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
Richard Bresnahan
Thomas M. Burke
Thomas J. Casey
Morry S. Cole
Richard J. Collins
Dana Tippin Cutler
Sherry Doctorian
Carol Chazen Friedman
Chad A. Gaddie
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
Max E. Mitchell
Daniel A. Raniere
John A. Ruth
Daniel J. Ryan
Allan D. Seidel
Robert H. Shaw
Wallace Squibb
F. Dianne Taylor
Eric J. Wulff

Members Absent:
Hon. Don M. Henry
Karen R. McCarthy
Richard G. Steele
H.A. Skip Walther

Also Present:
Maridee F. Edwards
John C. Dods
Sara Rittmann
Carl Schaepperkoetter
Samantha Snow Ward
Millie Aulbur
Catherine Barrie
Cecil Caulkins
Carla Counsil
Wayne Greer
Kent Hopper
Jim Howard
Chris Janku
Dan Lehmen
Stephen Murrell
Linda Oligschlaeger
Delores Shepherd
Robert Stoeckl
Gary Toohey
Jack Wax

    Minutes:

    It was moved and seconded that the minutes of the meetings of the Board of Governors of January 16 and of the Executive Committee of January 16, February 2, February 23, March 9, April 2, and April 21 be approved. The motion was approved.

    Financial Report:

    Mr. Burke reported that the Finance Committee had met in the morning to discuss the financial report. The Bar continues to operate on budget and is fiscally sound. No action was taken.

    Legislation:

    Catherine Barrie reported that the judicial budget has been approved. The trust code legislation, having passed the House, was amended in the Senate and sent back to the House. It seems likely that this bill will pass. The bankruptcy amendments are in good position to pass. This promises to be a successful session for the Bar.

    OCDC Dues Increase:

    Mr. Corrigan reviewed for Board members the events since the Board voted at its November 21, 2003 meeting to oppose an increase in the portion of dues that support the disciplinary system. Keith Birkes met with Maridee Edwards in early December, and in late December, Messrs. Corrigan and Birkes met with Ms. Edwards. In late January, a request was made of Ms. Edwards for additional information, and it was provided to the extent it was available. In early March, the Executive and Finance Committees jointly met with Ms. Edwards and discussed her plans for the future. She indicated that she plans to seek a dues increase between $18 and $25 to support the addition of eight to ten staff members in the Jefferson City office. Following that meeting, the Executive and Finance Committees produced a set of recommendations that were furnished to the Supreme Court, as well as to Ms. Edwards and John Dods, Chair of the Advisory Committee. Ms. Edwards and Mr. Dods were invited to attend the Board meeting and address the issues involved.

    At that point, Ms. Edwards reported at length on the issues raised by the proposed increase and the recommendations furnished to the Board. She explained that the proposed increase, which has not yet been submitted to the Supreme Court, is part of a five-year plan for the operation of OCDC. She discussed the caseload of the office in some detail, including the decrease in the number of open cases over one year old. She explained the changes made in the office following the ABA report on Missouri's disciplinary system. Mr. Dods explained that the Advisory Committee comprises eight members, two of whom are nonlawyers. The Committee, among other things, supervises Sara Rittmann, whose role is to provide advice to lawyers with concerns about the rules of professional conduct. Ms. Edwards indicated that she now has no plans to eliminate the use of volunteers in the disciplinary system.

    There was extensive discussion of the information presented by Ms. Edwards and Mr. Dods and of the information included with the Board agenda. Board members expressed several concerns, including the use of more volunteers around the state; the expansion of the regional committees in the urban areas to include the surrounding counties, hoping to lighten the load on the OCDC staff in Jefferson City; the suggestion that the amount of surplus OCDC presently has is sufficient for the foreseeable future to operate OCDC in a sound manner without additional dues increases.

    It was moved and seconded that the Board of Governors adopt the recommendations of the Executive and Finance Committees, as amended to propose the use of the Advisory Committee as an oversight committee, said recommendations reading as follows:

    "1. There are adequate financial reserves available to OCDC to continue its current level of operation, with reasonable growth, for at least two years. That time frame would allow an oversight committee adequate time to completely review and understand the administrative and financial circumstance of the Office of Chief Disciplinary Counsel. If the disciplinary board then concludes that a dues increase and corresponding significant staff increase is necessary, it would make that recommendation to the Supreme Court. The Board of Governors, in due course, would also like to comment regarding such changes.

    2. The Missouri Advisory Committee should be designated by the Supreme Court to provide oversight over OCDC for administrative and budgetary matters. The Committee should meet at least quarterly with the disciplinary counsel to provide management and budgetary oversight. The Committee's size should be expanded by adding four additional members, to be nominated by the Board of Governors, and one of the two upcoming vacancies should be filled with a person nominated by the Board of Governors, to provide five members nominated the Board of Governors. One of the five would be lay people, the other four lawyers.

    3. Consistent reporting in OCDC annual reports should be adopted to ensure fair and accurate measurement of work performed and demands made upon the lawyers' disciplinary system in Missouri.

    4. Disciplined lawyers should be charged an appropriate amount as determined by the disciplinary board to defray some costs of discipline.

    5. Draft proposed changes to the Supreme Court rules will be drafted for the Supreme Court's consideration."

    The motion was approved. It was the further moved and seconded that, if the Supreme Court declines to use the Advisory Committee for this task, another committee should be appointed. The motion failed.

    Appointments:

        Fee Dispute Resolution Committee.

        Mr. Corrigan reported that Scott Orr's term is expiring, and he is not eligible for reappointment. In addition, Mary Gant Newquist (the nonlawyer appointee) has resigned, leaving an unexpired term. The Executive Committee suggests that Robert Bailey be appointed to replace Mr. Orr and that Betty Preston be appointed to replace Ms. Newquist, whose term would have expired in May, 2005. It was moved and seconded that the recommendations be adopted. The motion was approved.

        ABA Delegates.

        Mr. Corrigan reported that the terms of Jennifer Gille Bacon, Doreen Dodson, and Michael Gunn to the ABA House of Delegates are expiring in 2004. Traditionally, Past Presidents each serve two two-year terms, and Ms. Bacon and Mr. Gunn are completing their first term. In addition, Ms. Dodson, who is completing her fifth term, was chosen by the Board of Governors, per resolution of May 9, 1991, to serve an extended term. It was moved and seconded that all three be reappointed to an additional term. The motion was approved.

        Board of Governors.

        Mr. Corrigan reported that Ms. Taylor has resigned as a member of the Board effective at the close of this meeting. The impending vacancy was publicized to Bar members in St. Louis, and 33 members of the Bar have expressed interest. The Executive Committee's suggested procedure is as follows: Voting by secret ballot, the Board should first vote on all 33 names. If no one receives a majority, the Board should vote again in secret on the top six names. If no one receives a majority on that ballot, there will be a final vote on the top two names. At that point, Board members who wish to do so may speak in favor of one or the other candidate. It was moved and seconded that this procedure be approved for this election. The motion was approved. Ballots were distributed, marked and counted, and no one received a majority of the votes. As there were five candidates with more than one vote, it was moved and seconded to amend the procedure to vote on the top five names. The motion was approved. Ballots were again distributed, and again, no one received a majority. The two remaining candidates were Lynn Ann Whaley and Hope Whitehead. After several Board members spoke on the qualifications of the candidates, a final ballot was distributed, and Hope Whitehead was elected to fill the remainder of Ms. Taylor's term.

        Alcoholism Intervention Committee.

        Mr. Corrigan reported that Geary Jaco has resigned as a member of the Intervention Committee, leaving an unexpired one-year term. Nancy Pew's term is expiring, and she is eligible for reappointment. The Executive Committee recommends that Ms. Pew be reappointed and that Danny L. Curtis be appointed to fill the vacancy left by Mr. Jaco's resignation. It was moved and seconded that the recommendations be adopted. The motion was approved.

    Committee Reports:

        YLS Council.

        Mr. Cole reported on the activities of the Young Lawyers Section during the 2003-2004 Bar year.

        Legal Services.

        Mr. Doerhoff reported that the Legal Services Corporation has decided not to seek any changes in the configuration of the legal services offices in Missouri. LSC will fund the four Missouri grantees for the foreseeable future. No action was taken.

        Corporate Pro Bono Committee.

        Mr. Corrigan reported that the Committee's efforts have been well-received. Wayne Greer demonstrated the website created for the purpose of helping corporate pro bono volunteers link up with legal services programs willing to provide projects to work on. Mr. Corrigan reported that that Committee also seeks to create a Corporate Pro Bono Award to be presented each year at the Annual Meeting in accordance with the following description: "The Corporate Pro Bono Award is presented annually at the Annual Meeting of The Missouri Bar to a Missouri corporate lawyer or law department that has demonstrated a significant commitment of time and/or resources by fulfilling the duty of the legal profession to provide pro bono legal services to individuals or not-for-profit entities that would otherwise be denied access to justice." It was moved and seconded that the award be created. The motion was approved.

        Advertising Committee.

        Mr. Levison reported that the Committee had met on Thursday to discuss some proposed changes to Rules and Comments relating to advertising. Messrs. Casey and Lasley reported on the substance of the proposed changes. The Committee will present finalized versions of these items for the Board to consider at its July meeting.

        Lewis and Clark Committee.

        Judge Kintz and Mr. Ryan reported on activities related to the bicentennial of the Lewis and Clark expedition.

        Status of the Tort System Committee.

        Mr. Igoe reported that the Committee had met several times and had developed a useful body of resource materials and issue statements regarding a variety of proposals affecting the tort system in Missouri. The Committee will continue its work. Mr. Corrigan expressed his appreciation for the work of the Committee.

        Law Student Loan Repayment Assistance Committee.

        Steve Murrell reported on efforts to assist in the repayment of student loans for law students involved in public service.

        Complaint Resolution Committee

        Linda Oligschlaeger reported that the terms of a substantial group of complaint resolution facilitators had expired and that they were eligible for reappointment. It was moved and seconded that the group be reappointed. The motion was approved.

        MCLE Regulations.

        Mr. Janku reported on a proposal to change MCLE Regulation 15.05 to clarify that speaker and author credit is available to lawyers who are involved in electronic programs. It was moved and seconded that the proposed change in Regulation 15.05 be approved for submission to the Supreme Court for consideration. The motion was approved.

        Delivery of Legal Services.

        Mr. Halliburton reported that the Committee desired to change the legal services referral rules as follows: "If after the initial consultation, the attorney decides that he/she will not take the case, the client will be returned to the LRS for further referral. An attorney who decides not to take a case may not refer the client to another attorney without express permission from the LRS." It was moved and seconded that the change be approved. The motion was approved.

    ABA Proposals:

        Model Rules of Professional Conduct.

        Mr. Corrigan reported that Model Rules 1.6 and 1.13 were deferred from the January meeting for consideration at the May meeting. Because of the strongly expressed concerns from a number of Missouri Bar members, Mr. Corrigan requests the Board's authority to appoint a committee to study these proposals and report back to the Board, if possible by the time of the Annual Meeting. It was moved and seconded that the committee be authorized. The motion was approved.

        Model Rule Requiring Malpractice Insurance Disclosure by Lawyers.

        Mr. Corrigan reported that there may be a proposal from the ABA for a rule requiring lawyers to disclose whether they carry malpractice insurance. The Executive Committee seeks the Board's authority to convey the Bar's opposition to any such proposal should one be made. It was moved and seconded that the Executive Committee be so authorized. The motion was approved.

        Multijurisdictional Practice.

        Mr. Corrigan referred Board members to a memorandum prepared by Chris Janku. The committee chaired by Past President Jennifer Gille Bacon suggests that the proposed MJP rules be adopted. It was moved and seconded that the proposal be approved. The motion was approved.

    Proposed Committee on Uniform State Laws:

    Mr. Corrigan referred Board members to a letter from former UMC Law School Dean Timothy Heinsz suggesting that The Missouri Bar create a committee on Uniform State Laws. It was moved and seconded that the committee be created. The motion was approved.

    Officers Report:

        Executive Director's Report.

        Mr. Birkes reported there would be a retirement party in Jefferson City for Cecil Caulkins on June 30. Samantha Ward, a new attorney in the CLE department, was introduced and the restructuring of responsibilities in the CLE department following Mr. Caulkins's retirement was explained.

        Vice-President's Report.

        Mr. Copeland reported that he is thinking about Florida as a location for the Mid-Year Seminar and looking at the Lake of the Ozarks as a site for the July Board meeting.

        President-Elect's Report.

        Mr. Copeland reported for Mr. Whisler that plans were proceeding for the 2005 Mid-Year Seminar in Las Vegas.

        President's Report.

            State Funding for the Judiciary.

            Mr. Corrigan reported the funding for the state judiciary did not include a line item to pay for a judicial conference. Because of the continuing budget problems the state is experiencing, there is concern that the Chief Justice may not attempt to hold a judicial conference this year. A possible solution would be to seek a one-time grant from The Missouri Bar Foundation of $50,000 to help pay the registration fees for the judges. There was concern on the part of several Board members that stepping forward to fund what should be an appropriation item might set a bad precedent. It was moved and seconded that the Bar seek such a grant. The motion was approved. Judge Kintz abstained from voting.

            Missouri Bar Public Service Announcements.

            Mr. Corrigan reported that the Bar continued to have a public presence with television and radio spots, which were played for Board members.

            Lawyers in the Legislature.

            Mr. Corrigan reported that the response to this initiative has been very good.

            Missouri Bar Annual Meeting.

            Mr. Corrigan asked Bob Stoeckl to describe plans for the Annual Meeting as of this point.

            Media Coverage.

            Mr. Corrigan directed the attention of Board members to the information included with the agenda.

There being no further business, the meeting was adjourned.

Respectfully submitted,

Keith A. Birkes, Secretary