Board Minutes - September 29, 2004


Renaissance Grand Hotel, St. Louis

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
Hon. Richard Bresnahan
Newton C. Brill
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
Edward J. Hershewe
Bruce F. Hilton
Vincent F. Igoe, Jr.
Sylvester James, 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
Richard G. Steele
Lynn Whaley Vogel
H.A. Skip Walther
Hope Whitehead
James C. Wirken
Eric J. Wulff

Members Absent:
Karen R. McCarthy

Also Present:
Millie Aulbur
Catherine Barrie
Carla Counsil
Wayne Greer
Kent Hopper
Jim Howard
Chris Janku
Dan Lehmen
Stephen Murrell
Linda Oligschlaeger
Delores Shepherd
Robert Stoeckl
Gary Toohey
Samantha Ward
Jack Wax

Minutes:

It was moved and seconded that the minutes of the meetings of the Board of Governors of July 23 and of the Executive Committee meetings of July 22, August 1, August 26 and September 10 be approved. Mr. Levison called for a correction to the July 23 minutes related to the discussion on lawyer advertising. He stated that the first sentence of the second paragraph in the section on lawyer advertising should be corrected to read: "Mr. Levison reported that all but one provision contained in the proposed report was supported by precedent in either the Supreme Court, state court precedent or state court adoption." The motion, including an amendment to include the correction, was approved.

Financial Committee Report:

Mr. Burke reported that the Bar is in good financial condition with current projections running a slightly better than anticipated. He reported that the Finance Committee will begin work on next year's budget and will report at the November meeting. No action was taken.

Legislation:

Catherine Barrie reported that five Bar-sponsored legislative proposals for the 2005 session of the General Assembly would be discussed. Three of the proposals have been approved by the Bar committees and are being offered for Board approval. For these proposals, the Board will vote on whether they are within the scope of bar related legislative activities, with a standard of "improvement of the law." The Board will then vote separately on the substance of the proposal.

2005-01, Right of Sepulcher (Elder Law Committee)

Martha Brown discussed the proposal, which pertains to the "right of sepulcher," that is, the right to choose and control the burial, cremation or other final disposition of a dead human body. The legislation would ensure that an individual has a right to control the disposition of his/her body after death, including the right to designate the person who will handle the disposition of the body and gives first priority to the right of sepulcher to the person designated by the decedent. The legislation is designed to correct various problems in Sec. 194.119 RSMo and remove inconsistencies between the current law and the anatomical gift law. It was moved and seconded that the proposed legislation was within scope. It was then moved and seconded that the proposal be approved for filing. The motion was approved by two-thirds of the members present and voting.

2005-02, Deadline for Filing in Condemnation Proceedings (Eminent Domain Committee)

Stanley Wallach explained that this legislation would repeal section 523.050, RSMo. and enact in lieu thereof a new section 523.050, RSMo that reconciles the statute with the Supreme Court Rule by changing the deadline for filing exceptions to the commissioner's report in condemnation proceedings from 10 to 30 days after notice of filing the report. 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 then moved and seconded that the proposal be approved for filing. The motion was approved by two-thirds of the members present and voting.

Mr. Wallach requested permission and briefed the Board on a the case of Kelo v. City of New London Connecticut, granted cert by the U.S. Supreme Court, and involving the issue of the government's taking of private property to be turned over to a private entity. While framed very narrowly, Mr. Wallach indicated that the decision of the case will have an impact nationally, and in Missouri, and will be watched closely by the committee.

2005-03, Appropriations for Filing Fee Legislation (Delivery of Legal Services Committee

Mr. Halliburton explained that the filing fee surcharge legislation would require an appropriation bill in order for the money to pass to legal services organizations as envisioned by S.B. 447. 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 then moved and seconded that the proposal be approved for filing. The motion was approved by two-thirds of the members present and voting. Mr. Wulff voted no.

Ms. Barrie explained that the next two items are not ready for Board approval, because they have not yet been approved by the respective committees. It is possible that they will be submitted for approval by the November meeting, so they are being presented today for informational purposes.

Potential Revisions to the Animal Neglect Statute and the Statute Related to the Killing of Dogs Injuring Livestock (Animal Law Committee)

Ellen Condie reported that the Animal Law Committee began a review of Missouri's animal related statutes, following the establishment of the committee last spring. She indicated that the committee found issues related to the statute governing the neglect and abuse of animals 578.009 RSMo. and expects to address conflicts between the substantive language and definitions related to adequate care and control. Other issues dentified relate to the shooting of dogs injuring livestock - addressing time allowed for destroying the dog and reconciling the definitions of livestock. She indicated that the committee plans to craft and submit legislative proposals in November.

Potential Legislative Proposal to Address Resolution of Disputes in Defective Residential Construction by Mediation (ADR Committee)

Ms. Barrie reported that during the last session, a bill was proposed requiring a process of mandatory mediation in construction disputes. Last year, the Board found that bill in scope, but took an opposing position. The opposition centered around concerns that the process was weighted against the consumer. The concept of using mediation in these disputes was not a basis of the opposition. The bill passed in the 2004 session, but was vetoed. At this point, the ADR Committee is coming forth with a proposed legislation to address the issue and comply with Supreme Court of Missouri Rule 17, regarding training of mediators.

Robert Litz explained that the ADR Committee decided to consider developing an option to streamline the process of disputes, still calling for mediation. The committee expects to reach out and solicit comments from other committees within the Bar. The issue will be discussed at the ADR Conference and the November meetings. They anticipate coming forward in November with a specific legislative proposal.

Committee Report:

Lawyer Advertising

Mr. Levison began with a review of the reasons behind creating a committee to look at the issue of lawyer advertising within the state. He briefly reviewed some of the misconception and miscommunication that has been circulated about the committee and its work. He commented that some of the miscommunication related to the committee being comprised of large firm lawyers, when in fact plaintiff's lawyers were very well represented and that the committee restricted public comment, when in fact public comment shaped many of the revisions. He took some time to read some of the positive comments received by the committee.

He went on to explain that in addition to seeking public comment, the committee requested a constitutional review by Saint Louis University Law Professor Howard. He reported that the committee members studied all comments and made revisions based on the comment before completing the draft rule currently before the Board.

Mr. Levison indicated that the committee was now in a position to make a recommendation to the Board. He made a motion that the Board endorse the draft rules as provided, with one small change deleting the comments in paragraph (e) on page 3, and that the rules be circulated for comment to the bar for a period of 60 days.

There was some discussion about the provision of the rule in section 723, which would require lawyers to submit a copy of their direct solicitation ads to OCDC. Concern was expressed that OCDC felt that they were not equipped to review each of these ads and that no response by OCDC may be misinterpreted by lawyers as approval. Others explained that aside from the issue of approving or not approving the ads, OCDC would benefit by having ads on file when a complaint is filed, expediting their investigative process should a complaint be filed.

Concerns were raised about whether it was proper for the Board to endorse the draft rule before it is sent out for additional comment and whether it would be more appropriate for the Board to act on the rules at the Spring Meetings in May, rather than at the January Board meeting. A motion was made, and seconded to amend the original motion as follows: the Board would circulate the draft rules as indicated in the original motion without endorsement for comment from the bar and the Board would consider the rules for final approval in May. The motion was approved with a showing of hands. The vote was 27 yea votes and 8 nay votes.

Additional discussion ensued on the original motion as amended. Concerns were expressed that the lack of endorsement by the board before circulation of the rules would be seen as a lack of support for the committee's work, leaving the committee on its own in the midst of this controversial issue. Other views indicated strong support for the work of the committee, but expressed a concern that an endorsement at this time would be premature, since the committee is recommending further comments from the bar. Others commented that the Board should only debate and endorse a final product, and an endorsement at this stage could require the Board to endorse and approve the rules twice, if changes are made after further comments are received. Board members making comments during the discussion expressed support and appreciation for the courageous work of the committee.

The discussion turned to the timing. Several Board members expressed a position that the process should not be rushed, that the topic was too important and time must be allowed to ensure that the bar has plenty of time to comment and the best final product be produced. Other concerns were expressed that extending the process too long would be detrimental. A motion was made to amend the original motion as amended as follows: the Board would circulate the draft rules as indicated in the original motion without endorsement for comment from the bar and the Board would consider the rules for approval in January, rather than May.

Additional discussion ensued about whether it would be appropriate for the Board to consider approval of the rules at the January meeting, since it is held outside of the state of Missouri. Executive Director Keith Birkes informed the Board that when the decision was made to hold one meeting outside of the state, the Board made a conscious decision that it would not consider any controversial issues at that meeting, since members could not easily attend. He indicated that this is a policy, which has been unanimously and consistently followed by every Board to date. He also indicated that this Board would be free to make a change to that policy.

Following additional discussion, the motion to have the Board consider the rule at the January meeting was withdrawn and replaced with a motion as follows: the Board would circulate the draft rules as indicated in the original motion without endorsement for comment from the bar and the Board would consider the rules for approval at its meeting in November. The motion was seconded and approved.

The Board agreed that it should be made clear that the Board, rather than the committee was circulating the current draft of the rules. Mr. Corrigan briefly revisited the inception of the committee, indicating that the committee was the result of action by the Board at its retreat in July 2003. He recognized and commended the committee members for all their work. A motion was made that the Board endorse the work of this committee and support the direction of its work. The motion was seconded and was approved.

Lawyers' Confidentiality

Mr. Bien reported that the Supreme Court of Missouri advised the board that they would consider changes to Rule 1.6 and 1.13 as a result of the ABA Model Rules changes after Sarbanes-Oxley Act of 2002. The special committee was created to review the changes and make recommendations for the Board to forward to the Court. He reported that the committee began by developing position papers to analyze and distill the issues. He made reference to a previous review and the adoption of a report on Rule 1.6 by a special bar committee chaired by Mr. Spain in July 2003. He reviewed the main positions argued in favor of the Model Rule changes to 1.6 and 1.13, as well as the major arguments against the changes. He reported that the committee requested comments from members of the bar. Member comments were received in November and December. The respondents making these comments had a good understanding of the issues and the comments were fairly evenly divided. Comments were also received via a survey in ESQ. The committee did not find these comments as useful. Many of those commenting appeared to be confused, some thinking that the rules had already been adopted in Missouri. He made a motion that the Board adopt the report of the Special Committee with respect to Rule 1.6 and 1.13 and authorize the President to deliver the report to the Supreme Court of Missouri as the recommendations of the bar. Specifically, the committee recommends that the Board maintain existing policy, which is reflected in the changes to Rule 1.6 adopted in July of 2003, and recommend those changes again to the Court.

They are:

• to require consultation prior to disclosure, if disclosure is deemed necessary by the attorney to advance the interest of the client

• to apply a reasonably certain standard regarding disclosure regarding the imminence of criminal conduct that would results in serious injury or death

• to allow disclosure in response to court order or other law

• to allow disclosure to obtain legal advice as to the application and interpretation of the rules

The committee does not recommend any changes to Rule 1.13, deciding hat the status quo adequately protects the public and clients, and the concluding that the proposed changes would in fact prove problematic, creating an unclear burden, risk and confusion for the lawyer. A motion was made to adopt report, seconded and approved.

Law School Loan Repayment Assistance Program

Ms. Doctorian reported that about three weeks earlier, a goal was set to raise $100,000 for the Law School Loan Repayment program by the end of the Annual Meeting. She reported that with the help of a host of board members and staff, approximately $75,000 - $80,000 had been raised in contributions and pledges. She reported that efforts are still underway, and she anticipated achieving the $100,000 goal by the end of the Awards Banquet on Friday. Ms. Doctorian thanked everyone for their efforts. She further reported that the next goal will be to raise enough funds for Joe Whisler to be in a position to award the first loans from this program at the 2005 Annual Meeting. She further reported that brochures have been developed and distributed during this meeting and future meetings.

She also reported that the program calls for an advisory committee comprised of two members from The Missouri Bar Board of Trustees, two members from the Missouri Bar Foundation and one from the Young Lawyers' Section. Recommendations have been made to the Executive Committee.

Mr. Corrigan reported that the Executive Committee voted unanimously to recommend the appointment of Sherrie Doctorian and Jim Wirken to serve on the Advisory Committee for the program. A motion was made and seconded to approve the Executive Committee recommendation. The motion was approved.

Tort Review

Mr. Igoe reported that the Tort Review Committee has scheduled an organizational meeting for October 1. He anticipates that the committee will take action similar to that taken the previous year, beginning with the development of a survey to the membership in an effort to obtain feedback on what the committee should and should not address regarding this divisive issue. There was some discussion regarding whether it would be helpful to obtain an objective opinion from someone outside of the Board of Governors on what a unified bar can and cannot do in these area prior to creating a survey. The suggestion was that the opinion focus particularly in the areas of joint and several liability. It was decided that this matter would be considered within the committee, and any action requiring funding, could be addressed through the Executive Committee. Mr. Corrigan thanked the committee for its work and reported that Mr. Igoe would be receiving a President's Award for leading the work of this committee.

Young Lawyers' Section Council

Mr. Cole reported that the YLS was concluding their 2003-04 year under the leadership of Patricia Sexton. He reported that the main projects of the YLS were the Junior Judges program and the expansion of the Giving Tree, from a central Missouri project to a statewide project. He explained that the other activities of the YLS were outlined in the Section's annual report. He expressed thanks to Steven Murrell for his assistance to the Section during the year and to the Board for its support of YLS and it efforts to involve the YLS within The Missouri Bar. He concluded his report by reviewing the plans for the YLS "Night at the Tap Room," following the Best of St. Louis/Missouri reception.

File Retention

Mr. Blanton reported that a file retention rule, drafted and recommended by the committee and approved by the Board in January, was adopted by the Supreme Court of Missouri and goes into effect in January. Under the current rule, a file belonged to the client, therefore, absent an agreement, the lawyers was never free to destroy a file. The new rule essentially establishes a cut-off period of 10 years at which time the file would be considered abandoned, absent a few exception. Consequently, the lawyer would then be allowed to destroy it. Mr. Blanton indicated that the new rule provides an important option for lawyers, without causing any harm to the clients.

Judicial Evaluation Review

Mr. Doerhoff reviewed the origins of the nonpartisan court plan and the judicial evaluation. He reported that his committee was appointed to consider whether improvements could be made to the judicial evaluation, which is currently administered through a partnership of The Missouri Bar, Bar Association of Metropolitan St. Louis and the Kansas City Metropolitan Bar Association. He reported that the committee last week sent a letter to all merit-selected judges in the state. The letter included a form that invited their constructive comments on ways to make this evaluation better. He reported that after the November election, the committee will look at the comments received, evaluate them, and if there are some good ideas that should be adopted, they will be brought before the Board in November.

Comments were made regarding concerns about the fairness of the evaluations toward African American judges. Ms. Whitehead indicated that she has heard concerns about whether there is a pattern of lower ratings for African American judges and that the St. Louis Riverfront Times was exploring the issue. She requested that the committee also examine whether there is evidence of such a pattern as part of their review. Mr. Doerhoff agreed to do so.

Committee Annual Reports

Mr. Corrigan reported that committee annual reports were included in the Board packet and encouraged everyone to review them outside of the meeting.

Executive Committee

Mr. Corrigan reported that the Supreme Court of Missouri met and there will not be a 2005 dues increase to provide additional funding to OCDC. A 2006 dues increase will not considered until a new advisory committee is assembled and that committee has had a chance to review the OCDC dues increase issues.

Corporate Pro Bono Program

Mr. Birkes passed around a brief report from Karen McCarthy regarding the Corporate Pro Bono program. Mr. Corrigan reported that Ms. McCarthy was out of town and could not attend the meeting. He also reported that Ms. McCarthy has also been chosen to receive a President's Award for her work, chairing this new Missouri Bar program.

Expansion of Lawyer Search

Mr. Birkes reported that the Executive Committee has discussed the Bar's obligation and responsibility to help the public find lawyers. He called attention to the "lawyers search" resource that is available on the Missouri Bar Web site. He explained that any lawyer in Missouri can be listed on the Internet service, that only a small number of Missouri lawyers (1500) currently take advantage of the service and that the general public regularly uses the resource (more than 100,000 hits) to find a lawyers. Mr. Greer demonstrated the search function and described its operation. Mr. Birkes indicated that The Missouri Bar can do a lot more to publicize this service to lawyers and the general public. Some additional cost would be involved, but is would not be significant and would be built into next year's budget.

Appointments:

September Appointments:

Trustees of The Missouri Bar

Mr. Birkes reported that Dana Tippin Cutler completed one term as a Trustee of The Missouri Center, and traditionally, trustees are asked to serve two terms. A motion was made and seconded to appoint Ms. Cutler for a second term. The motion was approved.

November Appointments:

Mr. Birkes reported that there are three committees in which appointments will be made at the November meeting - Client Security Fund Committee, Complaint Resolutions Committee, and Missouri Press-Bar Commission.

Officer Reports:

Executive Director's Report.

Mr. Birkes reported that he did not have any additional specific information to report, invited any questions from the Board and invited Board members to contact him should they have questions later.

Vice-President's Report.

Mr. Copeland reported that he is still considering Florida for the 2006 Mid-Year Meeting and will be working on establishing a location. He reported these efforts may be delayed somewhat, due to the storms that have affected the southeast. He anticipates reporting further at either the November or January meeting. Mr. Copeland also encouraged suggestions from Board members regarding any issues that are of significant interest to the bar and would be appropriate for action during his upcoming term.

President-Elect's Report.

Mr. Whisler explained that the advance tickets were now available for the shows at the Mid-Year Meeting is in Las Vegas and indicated that Board members would receive a letter with details. He reported that the revised version of the Durable Power of Attorney was included in the meeting packet. He indicated that the form was revised slightly and an organ donor option was added. He indicated that the Elder Law Committee suggested that a HIPPA form accompany the DPA and this form is being developed for distribution. He referred to his comments from the July Board meeting regarding plans for his term.

President's Report.

Amicus Brief

Mr. Blanton reported that he completed and submitted the amicus brief on behalf of The Missouri Bar related to attacks on the Minnesota cannons 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. He reported that there were three issues in the case. The one issue that he focused on in his brief dealt with whether judges could solicit money directly or through committees. He indicated that the opposing side did not argue against this particular point, indications are they will prevail on this issue.

Judicial Evaluation Survey Press Conferences

Mr. Birkes reported for Mr. Corrigan. He reported that press conferences were held in St. Louis, Kansas City and Jefferson City when the evaluation results were released on September 15. Officers were present to release the results. There was reasonable media coverage. One hundred fifty-thousand copies of the results were disseminated statewide. The evaluation can also be downloaded from The Missouri Bar Web site. He reiterated that a committee chaired by Dale Doerhoff and made up of members of BAMSL and KCMBA are reviewing the survey.

Lawyers in the Legislature

Mr. Birkes reported that the Lawyers in the Legislature effort initiated by Bill Corrigan resulted in an increase in the number of lawyers who are running for office. A significant number of these lawyers mounted successful primary campaigns and are on the ballot in the November general election.

Annual Meeting

Mr. Birkes reported that the content of this year's Annual Meeting is spectacular. Attendance figure appear to be good. The numbers of attendees have increased during the past three years, since the meeting format was revamped under then-president Teresa Levings. Mr. Birkes called attention to a list of legislators who are expected to attend the Best of St. Louis/Missouri reception. He asked Board members to make a special effort to welcome them during the reception and indicated that the legislators can be identified by the wearing of a green name badge. He reviewed the location for the reception at Art Hill in Forest Park.

Debt of Gratitude

Resolution Recognizing Missouri Bar Staff

Mr. Corrigan reported that the Executive Committee recommended taking a moment on the 60th anniversary of the unified Missouri Bar to recognize the hard work of the staff. He called on Mr. Doerhoff who made a motion, which was seconded to officially approve a written resolution recognizing the staff, including a list of all current staff members. The motion was approved. Mr. Birkes expressed appreciation on behalf of the staff.

Acknowledgment of Missouri Bar Directors

Mr. Corrigan commented on the work of each Missouri Bar Director and briefly thanked them individually for their efforts. The Board joined Mr. Corrigan in thanking the directors.

Acknowledgement of Missouri Bar Executive Director

Mr. Corrigan provided a review of the career of Missouri Bar Executive Director Mr. Birkes and was joined by Messrs. Whisler, Copeland, Doerhoff and a video tribute from other past presidents commenting on his efforts and accomplishments in leading the Bar staff, as a national bar leader and as a leader in the administration of justice.

Acknowledgement of Missouri Bar Board of Governors

Mr. Corrigan recognized the Board of Governors for their hard work and efforts exhibited in service to the lawyers of the state. He drew their attention to an article that he wrote for the Missouri Bar Journal in which he expressed his appreciation to each member individually.

Acknowledgement of Retiring Board Members

Mr. Corrigan reported that several members of Board of Governors are retiring. He commented that the group represents a combined 42 years of service to the bar. He introduced and congratulated the following: Morry Cole, Richard Collins, Richard Bien, Judge Don Henry, Daniel Ryan and Immediate Past President Dale C. Doerhoff.

There being no further business, the meeting was adjourned.

Respectfully submitted,

Keith A. Birkes, Secretary