Board Minutes - July 23, 2004


Big Cedar Lodge, Ridgedale

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
Hon. Don M. Henry
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
John A. Ruth
Daniel J. Ryan
Allan D. Seidel
Robert H. Shaw
Wallace Squibb
Richard G. Steele
H.A. Skip Walther
Hope Whitehead
Eric J. Wulff

Also Present:
Carla Counsil
Kent Hopper
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 May 7, 2004 and of the Executive Committee of May 7, 2004 be approved. The motion was approved. Mr. Copeland asked for a correction to the Vice-President's report in the May 7 minutes to reflect that the July board meeting site for 2006 will be at Big Cedar. The motion was approved.
     Financial Report:
         Financial Statements

        Mr. Burke reported that the Finance Committee met in the morning todiscuss the financial report. The board continues to operate on budget and fiscally sound.
         Annual Meeting Report

        Mr. Burke submitted for approval the 2004 Annual Meeting budget. It was moved and seconded that the budget for the 2004 Annual Meeting be approved. The motion was approved.
         2003 Missouri Bar Audit

        Mr. Burke also reported that the Bar's annual audit was completed, with no discrepancies in the Bar's financial position. A copy of the audit was distributed to the Board.
         OCDC Dues Increase

        Jennifer Gille Bacon provided a detailed report as The Missouri Bar liaison on the issue of an OCDC dues increase. Ms. Bacon reported that it was her understanding that OCDC will not ask for a dues increase this year. The change in position resulted from a variety of factors uncovered during meetings with Mr. Dods and the Advisory Committee. First, while Ms. Bacon acknowledged that OCDC will likely need additional space in the future, the intention to use OCDC cash reserves to fund construction - creating the immediate need for a dues increase - was found to be an unnecessary and a financially imprudent approach. Instead, building construction could be accomplished by borrowing capital and amortizing it over time, reducing the need to deplete the cash reserves.  In addition, it was discovered that the real estate of OCDC is owned by the Trustees of The Missouri Bar. Consequently, any issue regarding construction of additional office space be a decision of the Trustees.

        Ms. Bacon further reported that after meeting with Mr. Dods and the Advisory Committee and gaining a better understanding of the OCDC, it was clear that the office would benefit from some professional financial expertise and a board structure in order to fully analyze and properly justify any future dues increase  request, as well as improve budgetary and management operations in other matters. It also became clear that with a business model analysis, staffing, antiquated computer systems and/or space needs may produce a valid justification for a dues increase in the future.

        There was discussion regarding whether OCDC, the Advisory Committee and the Supreme Court clearly understood the Bar's philosophical opposition to the justification of a dues increase in order to move from the current volunteer system to a professional prosecutorial staff. Ms. Bacon indicated that this position was clearly understood by OCDC, that it was a position the Advisory Committee shared, and that although Ms. Edwards likely maintains an interest in moving in this direction, she is no longer entertaining or advocating for a professionally staffed, rather than volunteer structure. In addition, Ms. Edwards is no longer entertaining the opening of Kansas City and St. Louis offices.

        Other discussion focused on whether the decision to no longer request a dues increase for this year, coupled with a potential intent by OCDC to utilize financial expertise to analyze and develop reasonably justification for a future dues increase, places The Missouri Bar in a position to accept an increase in the future. Ms. Bacon indicated that Mr. Dods and the Advisory Committee would like to have a more cooperative and less confrontational relationship with The Missouri Bar. However, The Missouri Bar has given no indication that by eliminating the increase for this year, the Bar will support a future increase, without a businesslike analysis showing reasonable justification for the amount of any increase requested. Since the Supreme Court holds the only authority to decide on a dues increase, suggestions were made that the Bar act in a way that maintains the highest position of influence with the court.

        Mr. Corrigan reported that the Executive Committee recommends The Missouri Bar continue to strongly advocate with the Supreme Court, the need of an oversight board for OCDC, that any request for additional space be referred to the Trustees of the Missouri Bar and that Ms. Bacon continue in her role as representing the interests of The Missouri Bar in this matter. It was moved and seconded that the recommendation be adopted. The motion was approved.
    
     Committee Reports:
         Young Lawyers Section Council

        Mr. Cole reported on the selection of recipients for this year's YLS Liberty Bell and Tom Cochran awards to be presented at the Annual Meeting. Mr. Cole reported that two police officers - Detective Ken Nix, Clayton Police Department Sgt. Joe Laramie, Glendale Police Department - were selected for the Liberty Bell Award in recognition of their work in computer forensic and child protection training in the St. Louis area. The Tom Cochran Award will be presented to Judge Michael D. Burton and his wife attorney Sheila S. Burton for their work with youth in the East St. Louis area.

        Mr. Cole further reported that the use of the Tap Room will be donated for the YLS event, which follows the Best of St. Louis/Missouri reception at the Annual Meeting. With savings from the donation of the Tap Room, the YLS has hired the Soulard Blues Band to provide musical entertainment.

        Mr. Cole discussed two bylaw change proposals for board action. The first amendment would allow a Past Chairperson of the Council to remain on the Counsil as an ex officio member of the Executive Committee, without a vote, for up to two years following that person's term as Immediate Past Chairperson or until the Annual Meeting following such person's 36th birthday, whichever occurs first. The second amendment would allow a Council member to remain a member of the Council until the conclusion of the two year term for which he/she was elected unless disqualified for a reason other than age or number of years in practice. There was discussion about whether such changes would have an adverse effect on the involvement of young lawyers, who do meet the age or time of practice requirements associated with YLS membership, including a suggestion to prohibit members from running for election if they would "age out" during their term. The motions were seconded as proposed. Both motions were approved. Messrs. Tom Casey, Eric Wulff and Joe Blanton voted no.
         Corporate Pro Bono Program

        Karen McCarthy reported on the number of corporate counsel volunteers generated through the program to date, on the national publicity this effort has received and on the inquiries generated from other bar associations. Ms. McCarthy updated board members on the passage of SB 247, which provides malpractice protection through the State Legal Defense Fund for corporate and other attorneys doing pro bono work. The law removes a major obstacle impeding corporate counsel pro bono work. McCarthy reported on efforts to further encourage participation in the program by informing corporate counsel about the passage of SB 1247, using direct e-mail communication and called attention to the Corporate Pro Bono Web site, which can be accessed from the Missouri Bar website.
         Law Student Loan Repayment Assistance Program

        Sherry Doctorian reported on a proposed joint program of The Missouri Bar and The Missouri Bar Foundation to provide loan repayment assistance to lawyers who choose careers in public service and meet income parameters.  A draft proposal, including program guidelines was provided to the board with a request to approve the new program. After some discussion regarding whether prosecutors should be eligible to participate in the program, it was moved, seconded that the Loan Repayment Program be adopted. The motion was approved. Eric Wulff voted no.

        Subsequent to the approval, Mr. Corrigan announced a $10,000 contribution from Armstrong Teasdale to launch the fundraising effort for the program.
         Lawyer Advertising

        Mark Levison reported that the Special Committee on Lawyer Advertising devoted significant time to defining the issues that needed to be addressed, and prior to proposing solutions, analyzed the lawyer advertising cases decided by the Supreme Court, and other federal and state courts. In addition, the committee included the OCDC and Ethic Counsel as it developed the report. He called attention to a revision made after the report was printed for distribution to the board, which removed the language "and cannot be mandated" contained in the seventh line of Rule 7, paragraph (1).

        Mr. Levison reported that all but one provision contained in the proposed report was supported by precedent in either a federal or state court. The one exception was the provision in Rule 7.2, which would restrict ads in "attorney" or "lawyer" designated sections of telephone directories to 1/4 page (1/2 page if the directory is smaller than 8 1/2" X 11"). Mr. Levison explained that it was the committee's intention at this meeting to request the approval of the Board to distribute the proposed recommendations throughout the state, using ESQ., other communication vehicles and local bar associations, in order to get comments from the membership. As part of the distribution, it would be made clear that this was the committee's proposal of recommended changes, not that of The Missouri Bar Board of Governors. After receiving and considering the comments, the committee would submit final recommendations for Board approval in September.

        There was considerable discussion and it was moved and seconded that the provision regarding the size limitation for ads in telephone directories be removed before circulating to the membership, since some Board members believed the provision would be unconstitutional, almost certainly generate litigation, and the circulation of the document with this provision would make this body look silly. Following further discussion, a motion was made and seconded to amend the previously seconded motion to restore the limitation on ad size, based on the position that it would be worthwhile not to limit the discussion at this stage of the process. The motion to amend the motion was approved. It was moved and seconded to allow dissemination of the proposed recommendations as originally outlined by Mr. Levison. The motion was approved.

        It was noted that the Executive Committee authorized the hiring of a constitutional law expert to further advise the committee and the Board of Governors regarding the constitutionality of the proposed rule changes.
         Tort Review

        Mr. Igoe reported that this committee will begin reviewing the tort reform issues and legislation expected in next year's session. Mr. Igoe commented that the committee would like to propose using the bar's electronic communication resources to poll the membership and identify which issues are and are not divisive within the bar before the committee begins work on the issues. Mr. Birkes indicated that this resource was available and the University of Missouri could be used as a resource to craft the questions. Mr. Igoe agreed to work with members of his committee to identify the issues for membership polling and provide these to the Bar in the next few weeks for action.
         Lawyers Confidentiality

        Mr. Bein reported that the Committee studying possible changes to Model Rules 1.6 and 1.13 met twice. The rules, which are part of the Ethics 2000 Report, address issues of professional conduct for in-house lawyers related to confidentiality, privileged information, withdrawal and the potential adoption of   the client fraud exception in civil cases involving financial injury. Mr. Bein reported that committee members have drafted and disseminated internally pro or con papers on the issues and plan to consider the related Bar efforts from 2002 on these two rules and report in September.
         Leadership Academy

        C. Michelle Coleman provided a review of Leadership Academy activities during the past year. Ms. Coleman reported that this year's Leadership Academy was the first to select and implement two service projects (1) The Missouri Bar's Law-Related Education Project Citizen program and (2) the development of a website designed to teach children ages 6-9 about the law. Each member of the Leadership Academy related their individual plans for completing the two-year commitment of The Missouri Bar involvement required upon completion of the Academy term.
         Editorial Board

        Mr. Toohey reported that the Editorial Board was seeking a change to the editorial policy, which appears in the Journal of The Missouri Bar. The purpose of change is to clarify that although The Missouri Bar does a cite check of the cases, decision, and statutes used in the Journal, the Editorial Board does not perform independent research on the articles. Consequently, readers should use their own independent judgment related to interpretations provided by authors.  It was moved and seconded that the policy be changed. The motion was approved.
         Scope Change on the Law Practice Management Committee

        Mr. Lang reported that the Law Practice Management Committee has requested a change in its scope to include an additional focus on law office technology. The proposed scope would read as follows: The scope of this committee is to assist members of The Missouri Bar in efficiently and effectively administering their offices through the interface of professional management, identification of law office issues, and technology. It was moved and seconded that a change be made in the committee scope. The motion was approved.
    
     Legislation:

    Steven Murrell reported that both the Bar-drafted trust code legislation and the bankruptcy amendment measure passed in the 2004 session and were signed into law by Governor Holden. Mr. Murrell also directed the board to written reports on 2005 Bar-drafted legislation contained in the board materials.
     Executive Committee - Pro Bono Awards:

    Mr. Corrigan reported that the Executive Committee met and discussed The Missouri Bar's Pro Bono awards. Three individuals were nominated by the Committee on Delivery of Legal Services and selected for 2004. The recipient for out-state Missouri is Terry McVey, the St. Louis/Eastern Missouri nominee is Eric Hensic, and the Kansas City/Western Missouri nominee is John Simpson.
     Appointments:

     Trustees of The Missouri Bar

    Mr. Corrigan reported that Dana Tippin Cutler would be reappointed as a Trustee of The Missouri Bar and the appointment of Countess Price and Mark Comley.
     Officer Reports:
         Executive Director's Report

        Mr. Birkes reported that ballots have been mailed in the three districts with contested Board elections. Mr. Birkes informed the board that he has received some complaints about the use of broadcast e-mails by those who are campaigning for seats in these districts. He explained that the use of direct e-mail to the membership is used very sparingly and unless the board directs otherwise, this vehicle will continue to be used as an appropriate method to communicate with members regarding representatives of the Board of Governors.

        Mr. Birkes announced that an orientation session is scheduled on September 10 for all new members of the Board of Governors, Young Lawyer Section Council and Leadership Academy and invited all board members who would be interested to attend. Mr. Birkes also announced that the board packet contains information from the Doreen Dodson about issues that will come up at the August meeting of the ABA House of Delegates.
         Vice-President's Report

        Mr. Copeland reported that he expects to select a Florida as the location for the 2006 Mid-Year Meeting, and the July 2006 Board Meeting will be held at Big Cedar.
         President-Elect's Report
             Investigating Casemaker

            Mr. Whisler reported that the Bar will be looking into whether the Bar should consider purchasing Casemaker, a basic internet research for membership  It is now used within a consortium of bar associations in 15 states. The cost is $200,000 to purchase the technology and have the right to provide the service free to Missouri Bar members.
             Bordering State Reciprocity

            Mr. Whisler also announced plans to convene a meeting in Kansas City or St. Louis and invite bar presidents or their designees from the eight states that border Missouri to discuss entering into a compact to establish reciprocity in practice and CLE. In addition, Casemaker may also be addressed as part of this meeting.
             Medical Malpractice Issue

            Mr. Whisler distributed material being disseminated by interest groups blaming   lawyers for the medical malpractice issue and announced his intention to meet with the President and Executive Director of the Missouri Medical Association and Missouri Chamber of Commerce in the coming year in an attempt to reason with them. If reason does not work, then more aggressive action may be needed.
             YLS Involvement

            Mr. Whisler also reported that he met with YLS members in Kansas City and St. Louis to listen to their input and concerns and suggested appointing their members as YLS liaison on standing committees to establish better integration within the bar.
             Threats to Non-Partisan Court Plan

            He reported that over 50 legislators last year expressed an intent to do away with the non-partisan court plan and announced his intent to ask board members to meet the lawmakers from this group who are still in office after the election to inform them about the importance of that program.
             Legislator Programs

            The Law School for Legislators will be held again next year. The Lawyers in the Legislature program will take a year off.
             Durable Power of Attorney

            Mr. Whisler plans to revise the Durable Power of Attorney and our medical directives, taking into account HIPAA and adding a donor check off. He asked the Elder Law, Hospital and Health Law and Probate and Trust Committees for input and expects to have a new form in place by the board meeting in September. He encouraged members to help in distributing the forms through their office, churches, synagogues and organizations.
             Mid-Year Meeting

            Mr. Whisler concluded by reporting on the Mid-year meeting to be held in Las Vegas.
        
         President's Report
             Amicus Brief

            Mr. Blanton reported that he was preparing an amicus brief on behalf of The Missouri Bar related to some of the attacks on the Minnesota canons of judicial conduct in the case of Republican Party of Minnesota, et.al v. Suzanne White, in her capacity as Chairperson of the Minnesota Board of Judicial Standards, et. al. 
             Judicial Rentention/Compensation/Acknowledgement
                 Judicial Excellence Award

                Mr. Corrigan reported that the Executive Committee has recommended the establishment of an award of judicial excellence to honor members of the bench for exceptional public service. Mr. Corrigan suggested changes to the originally distributed award description with the changes to include federal judges and to recognize community as well as public service. Additional discussion suggested the inclusion of administrative law judges. It was decided that members of The Missouri Bar Board of Governors would nominate candidates and the Executive Committee will determine award recipients and number of awardees selected.  It was moved and seconded that the criteria as amended with language to include federal and administrative law judges and community service be approved. The motion was approved. It was further moved and seconded that the establishment of award of judicial excellence be approved. This motion was approved.

                The criteria for the award will be as follows: "The recipient(s) should be a state, federal or administrative judge who is an example of judicial excellence by being a leader in advancing the administration of justice, providing outstanding public and community service to the people of the State of Missouri, and a person of the highest character, integrity and honor and who inspires other members of the judiciary to similar noble purpose." The first Award for Judicial Excellence will be presented at the Bar's Annual Meeting, September 29-October 1, 2004.
                 Judicial Ads in Illinois

                Mr. Corrigan reported on ads being aired on television and radio in the St. Louis area that may have an effect on voting with respect to judges in Missouri. The ads were played for the Board. Mr. Corrigan also outlined negative press reports in Kansas City regarding municipal judges. Mr. Corrigan further reported that Executive Committee and leadership considered responses to these issues and recommend the following:
                       
                    judicial evaluations, which are generally released about October 1, would be released in mid-September between the primary and general election and in conjunction with press conferences, allowing a forum to discuss the nonpartisan court plan and attempt to gain positive media support.
                    two PSAs to air on public radio in St. Louis and Kansas City were approved by the Executive Committee and read to Board members, focusing on drawing attention to the judicial evaluations as a resource for voters. Mr. Birkes reported that 10 spots would be aired each week during morning and afternoon new programs for cost of $3,500 per month, per station. Inquiries to place ads on commercial stations were investigated and found to be cost prohibitive. Money to support the ads described above is available as part of the dollars budgeted to promote the judicial evaluation survey.
                There was discussion regarding concerns in Kansas City about the negative publicity generated from the news stories focused on municipal judges, but also on efforts behind the institution of term limits, Senate confirmation and other issues affecting judges. It was reported that the local bar associations in Kansas City are going to do some polling to help target communication efforts responding to these issues. Extensive discussion focused on whether we know enough about the effect of the ads in the St. Louis area for the PSAs to make an impact, whether placement on public radio would reach the right audience, whether the response is strong enough and whether drawing attention to evaluations of judges by lawyers would be persuasive to the public. Other discussion focused on whether it is time for the Bar to begin defending against mounting attacks on the profession and whether there was a way to coordinate The Missouri Bar efforts with the local metropolitan bar efforts. Concerns were also expressed that those creating negative ads are utilizing professional advertising agencies, using data supporting their approach.

                It was moved and seconded to release the judicial evaluation in mid-September.  The motion was approved. It was also moved and seconded to spend the $7,000 to place ads on NPR. The motion was approved.

                It was also moved to appropriate money to do a survey to determine if judges are in danger of being thrown out of office based on something other than performance. This motion was not seconded.
            
             Special Committee to Study Court Judicial Evaluation

            Mr. Corrigan reported that he has appointed Dale Doerhoff as chair of a committee to study the current judicial evaluation. This is a joint committee of The Missouri Bar, BAMSL, and KCMBA. Dana Tippin Cutler will also be Missouri Bar representative on the committee. The committee will study the content of the judicial survey, whether it needs to be updated, and whether it should be distributed electronically, potentially saving about $30,000 per year.
             Support of Judicial Pay Increases

            Mr. Corrigan reported that the St. Louis Chapter of ACCA has asked The Missouri Bar to join them in supporting judicial pay increases before the Missouri Citizen's Commission on Compensation for Elected Officials at hearings to be held this summer. The Executive Committee recommends that the Board take a position in support of judicial pay increases and send representatives to testify before the Commission. A motion was made and seconded to adopt the recommendation. The motion was approved.
             Federal Legislative Visit

            Mr. Corrigan reported on the recent visit by officers of The Missouri Bar to the state's Congressional delegation in Washington, D.C.
             Missouri Bar Annual Meeting

            Mr. Corrigan reported on letters sent to all Missouri Legislators inviting them to the Best of St. Louis/Missouri, a letter to judges encouraging their attendance and their cooperation in not scheduling a docket during the dates of the meeting and a letter to corporate counsel to solicit their financial support and attendance at the meeting. Mr. Corrigan called attention to the great cooperation of the planning committee, the direct involvement of Washington University and St. Louis University law schools, corporate involvement and the fundraising efforts underway.
             Press Contacts

            Mr. Corrigan reported on the PSAs that have be developed and aired throughout the state on television and radio.
             Lawyers in the Legislature

            Mr. Corrigan reminded the board that the primary election is August 3, circulated a list of lawyers running for office and encouraged board members to support candidates.

There being no further business, the meeting was adjourned.

Respectfully submitted,

Keith A. Birkes, Secretary