Board Minutes - November 19, 2004

Capitol Plaza Hotel, Jefferson City

Members Present:
Joe B. Whisler, President
Douglas A. Copeland, President-Elect
C. Ronald Baird, Vice-President
William M. Corrigan, Jr., Past President
Keith A. Birkes, Secretary

Erik Bergmanis
Joseph C. Blanton, Jr.
P. John Brady
Hon. Richard Bresnahan
Newton C. Brill
Thomas M. Burke
Thomas J. Casey
Dana Tippin Cutler
Sherry Doctorian
Carol Chazen Friedman
Chad A. Gaddie
Mike Greenwell
Richard F. Halliburton
Charlie J. Harris
Edward J. Hershewe
Bruce F. Hilton
Vincent F. Igoe, Jr.
Sylvester James, Jr.
John S. Johnston
George E. Kapke
Hon. John F. Kintz
William J. Lasley
Mark H. Levison
*Karen R. McCarthy
Max E. Mitchell
Daniel A. Raniere
John A. Ruth
Allan D. Seidel
Robert H. Shaw
Wallace Squibb
Alok K. Srivastava
Richard G. Steele
Lynn Whaley Vogel
H.A. Skip Walther
Hope Whitehead
James C. Wirken
Eric J. Wulff

* present by telephone

Also Present:
Millie Aulbur
Dana Apple
Catherine Barrie
Carla Counsil
Wayne Greer
Kent Hopper
Jim Howard
Chris Janku
Dan Lehmen
Gregory Linhares
Robert Litz
Stephen Murrell
Linda Oligschlaeger
Katharine Porter
Beth Riggert
Delores Shepherd
Robert Stoeckl
Gary Toohey
Larry Tucker
Samantha Ward
Jack Wax

    Minutes:

    It was moved and seconded that the minutes of the meetings of the Board of Governors on September 29 and of the Executive Committee meetings on September 29, October 25, October 26 and October 28 be approved. The motion was approved.

    Legislation:

    Catherine Barrie referred Board members to previously approved bar-drafted legislation to be introduced in the 2005 session of the General Assembly. She reported that legislative sponsors were being sought for two bills: (1) legislation making changes related to the "right of sepulcher" and (2) a bill reconciling filing deadlines in eminent domain statutes. She indicated that the bar-drafted legislation related to the appropriation of the legal services filing fee surcharge would not be introduced independently, but would be included in the judicial budget. No board action was required.

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

        Robert Litz, co-chair of the ADR Committee, reported that soon after his report at the September 29 Board meeting, his committee began working on a bill to improve legislation, regulating disputes arising from defective residential construction. He reminded the Board that The Missouri Bar opposed a bill focusing on this issue (SB 1081) in the 2004 session because of concerns about unfairness to consumers. SB 1081, which required mandatory mediation, passed in 2004. It was vetoed by the governor and barely survived a vote to override.

        He further reported that the ADR Committee completed the drafting of a proposed bill. The bill was circulated among many committees, generating a significant number of responses both in support and opposition. This ADR Committee proposed bill, in its fourth draft, was discussed during the ADR Committee meeting earlier in the day. The committee concluded that the draft proposal still raised serious concerns that its provisions could have the effect of denying citizens access to the courts. As a result, the committee recommended that the ADR Committee drafted bill not be approved and asked the Board, instead, to reaffirm its opposition to any bill introduced in the 2005 session, containing content substantially similar to the 2004 legislation - SB 1081.

        He also reported the committee agreed to make members of the committee, including the co-chairs, available to meet with members of the legislature to discuss these concerns and be available to testify on behalf of those within the ADR community and The Missouri Bar.

        Potential Revisions to the Animal Neglect Statutes and Statutes Related to the Definition of Companion Animals (Animal Law Committee)

        Dana Apple reported that a statutory review subcommittee of the Animal Law Committee began a review of Missouri's animal related statutes to identify and correct inconsistencies. The committee has developed a legislative proposal updating a number of Missouri statutes related to animals, including 578.009, 573.005, and 273.030 RSMo. Ms. Apple reported that a revised version of the legislative proposal was approved by the Animal Law Committee and provided to the Board. It was pointed out, however, that the proposal before the board had not been circulated in advance to the Legislative Committees of The Missouri Bar, the usual procedure for all bar-drafted legislation. It was moved that the proposals be sent to the Legislative Committee within The Missouri Bar for review before any Board action is taken. It was anticipated that this process would be completed in time for the Board to address the proposed legislation at the January meeting.
    Committee Reports:

        Professionalism Committee Report

        Larry Tucker informed the Board that the Professionalism Committee would be interested in offering its assistance and services in any efforts to educate and inform member of the bar about new advertising rules, should new rules be recommended by the Board of Governors and ultimately approved by the Missouri Supreme Court.

        Board Liaison Reports

        Board liaisons reported on activities of the various committees of The Missouri Bar. No board action was required.

        Lawyer Advertising Rules

        Mr. Levison provided a brief chronological review of the committee's work. He reported that the committee first concluded that the current rules on lawyer advertising were not being enforced and suspected that the lack of enforcement resulted from an inherent vagueness. The committee agreed that one of their objectives would include developing rules offering clearer guidance to enforcement authorities.

        The committee applied the most restrictive rules in its first draft and circulated the rules to the bar for comment. The committee also requested a constitutional review of the rules from Saint Louis University Professor Howard. A number of changes were suggested and adopted, including almost all of the changes suggested by the Professor Howard. The rules, incorporating all these changes, were discussed at the September 29 meeting of the Board. At that time, the Board decided to send the revised draft version out for an additional 37-day comment period.

        Mr. Levison stated that additional comments were received, providing a list of about 10 suggested revisions to 4-7.1, 4-7.2, and 4-7.3. He reported that the committee adopted the majority of the changes. He further reported that made two additional suggestions were considered, after the draft had already been provided to the Board for this meeting. Prior to the meeting, the committee considered these two suggested revisions, which included adding a comment clearly stating that "experience and competence" was defined as in 7.4.1.1 and eliminating the disclaimer requirement.

        Mr. Levison reported that the committee agreed to add the comment regarding the definition of "experience and competence." However, he reported that committee members were split on the issue of eliminating the disclaimer requirement. The committee agreed that the disclaimer issue should be discussed and decided by the Board.

        It was moved, and seconded to approve the rules as drafted including additions provided in the attached errata sheet. A discussion ensued regarding the disclaimer issue, with members making arguments in favor of keeping the disclaimer in the rule and arguments in favor of eliminating the disclaimer.

        During the discussion, it was moved and seconded that the original motion be amended to delete the disclosure requirement from the rules. This motion failed.

        It was moved and seconded that the original motion be amended to also include the suggested comment regarding the definition of "experience and competence" and the original motion as amended be approved. The motion was approved. Carol Chazen Friedman and Skip Walther voted "no."

        Proposed Changes to Rule 5.5

        Jennifer Gille Bacon reported that changes to Rule 5.5, regarding the unauthorized practice of law and multijurisdictional practice, have been finalized and that the newly revised rule was ready for Board approval and submission to the Supreme Court of Missouri for consideration. She further reported that the version before the Board included changes resolving concerns expressed by the Missouri Board of Bar Examiners and OCDC related to the impact of federal law on a lawyer's ability to practice within the state. She reported that the committee believes the current draft addresses all of the concerns heard from the bar. Ms. Bacon also drew the Board's attention to a change made to Rule 8.5, adding a provision that when Missouri lawyers go to another state, their ability to practice will be regulated by the laws of that state. It was moved and seconded that the Board approve the proposed draft of Rule 5.5 and the provision in Rule 8. The motion was approved.

        Tort Review

        Mr. Igoe reported that his committee is monitoring tort reform initiatives in the General Assembly and expects legislation to be introduced in the 2005 session. He provided the Board with a copy of HB 1346, a bill from the 2004 session, as an example of possible legislation. He reported that the sponsor of the 2004 bill, John Jetton, is now speaker of the House and the Chamber of Commerce has indicated that they will strongly support the tort reform effort.

        He further reported that Constitutional Law Professor Abrams from the University of Missouri School of Law was asked to provide a review and opinion as to the role of a mandatory bar regarding the tort reform issue. Professor Abram's report is expected at the end of November and will be distributed to Board members.

        Committee to Review Judicial Evaluation Survey

        Mr. Birkes reported that this committee met and solicited comments on ways to improve the content and dissemination of the Judicial Evaluation Survey. He stated a number of options are being considered, including the possibility of involving juror evaluations. He reported that Committee Chair Dale Doerhoff anticipates presenting committee recommendations to the Board at the spring meeting.

        Loan Repayment Assistance Program

        Sherry Doctorian reported that to date $130,000 has been raised for the program. She reviewed that an advisory committee has been formed to identify fundraising options; the committee is made up of 2 members of the Board of Governors, 2 members of the YLS and 2 members of the Missouri Bar Foundation. She reported that the group had a conference call to generate ideas for raising $250,000 by July 1. She stated that the committee would investigate foundation grants as one source of additional dollars. If the $250,000 goal is met, Ms. Doctorian reported that the committee would develop parameters to make the first disbursements at the Annual Meeting in 2005. She encouraged additional contributions from the Board, and reported that letters would be going out to those who have already pledged, so tax-deductible contributions could be made before the end of the year.

        Client Security Fund Committee

        Mr. Janku reviewed the report of the Client Security Fund, recommending payment of 42 claims for a total of $110,502.68. He indicated that two additional claims were added since the report was produced, but the additions did not affect the total dollars requested. He briefly reviewed the composition of the committee, which investigates claims against lawyers for fraudulent misconduct related to the taking of money from clients. He provided a brief reviewed the list of claims recommended for payment. A motion was made and seconded to approve the request as presented and it was approved.
    Finances:

        2004 Budget Report

        Mr. Burke reported that the Bar is in good financial shape and operating within budget. Revenues are actually slightly better than projected and disbursements less than expected. No action was taken.

        2005 Budget

        Mr. Burke reported that the Finance Committee carefully reviewed the proposed budget for 2005. He indicated that the budget shows a deficit as expected. He reported that current financial reserves should be adequate for two more years, at which time a dues increase will likely be needed. He pointed out the Bar has not had a dues increase in 11 years. He also reported that dollars were included in the budget to begin a major overhaul of The Missouri Bar's Web site, as well as to provide funding for an increase in the Client Security Fund.

        He reported that the Finance Committee and Executive Committee jointly recommend the approval of the 2005 budget as proposed. The motion was made, and seconded, and after the Board met briefly in Executive session, the motion was approved. Eric Wulff voted no.

        There was a brief discussion regarding efforts to increase non-dues revenue and its potential impact on the unique tax status enjoyed by the Bar.

    Appointments

        November Appointments

            Client Security Fund Committee

            Mr. Birkes reported that the terms of John Mowrer and Jim Sims are expiring, and both are not eligible for reappointment. It was moved and seconded that Max Mitchell and Lois Zerrer be appointed to fill the vacancies on this committee. The motion was approved.

            Complaint Resolution Committee

            Mr. Birkes reported that Suzanne Bradley's first term on this committee is expiring and she is eligible for reappointment. It was moved and seconded that Ms. Bradley be reappointed. The motion was approved.

            Missouri Press-Bar Commission

            Mr. Birkes reported that Mary B. Schultz's first term on this commission is expiring and she is eligible for reappointment. It was moved and seconded that Ms. Schultz be reappointed. The motion was approved.

    Officer's Reports

        Executive Director's Report

            Midyear Seminar

            Mr. Birkes reported that arrangements have been made for Board members to attend the Mid-Year Seminar in Las Vegas. He asked Board members to inform the Bar as soon as possible, if the current arrangements need to be cancelled or changed, so the Bar does not incur penalties or unnecessary expenses.

            He informed the Board members that a significant number of tickets have been purchased for Cirque du Soleil-O. He indicated that at this point, the Bar can still purchase additional tickets and asked Board members to let the Bar know of their interest in attending. He informed Board members that the cost for each ticket is $125, and the cost would be deducted from their expense reimbursement total.

            Mr. Birkes further reported that paid registrations for the meeting are on track, with registration totals that are comparable to those in previous years. He pointed out that most of the registrations come after Thanksgiving. Board members were asked to encourage friends and colleagues to attend. He outlined efforts to publicize the meeting through Missouri Bar print and electronic publications.

            OCDC Advisory Committee

            Mr. Birkes reported that the Supreme Court of Missouri was still considering appointments to the Advisory Committee. Mr. Birkes also reported that expansion is currently underway for the OCDC office space.

        Vice-President's Report

        Mr. Baird once again thanked the members of the Board for the opportunity to serve as Vice President. He reported that Board initiatives to retain the use of volunteer lawyers in OCDC disciplinary action has had positive effects in southwest Missouri; activity has begun to reestablish a lawyer committee in the Greene county area for disciplinary actions.

        President-Elect's Report

        Mr. Copeland reported that the next Mid-Year Meeting would return to Florida in 2006.

        President's Report

            Independence of the Judiciary

            Mr. Whisler reported on issues related to the judicial independence. He briefed the Board about campaigns by interest groups to affect the retention of judges in Missouri. He pointed out that multiple Supreme Court judges will be up for retention in 2006, creating the possibility of changing the composition of the court. He reported an expectation that legislation would be reintroduced in the 2005 General Assembly to do away with the Missouri Plan. He explained that the role and the options for action by a mandatory bar in these matters were unclear and may be limited.

            He further reported that the Judiciary (and all state government) has been asked to prepare a 2005 budget, which provides for a 25 percent cut in funding. He reported that a meeting was held with members of the Missouri Supreme Court and OSCA officials. He reported that since most judicial salaries are fixed, the effect of cuts would focus on court personnel and operations. This could result in the firing of one of every two court personnel, as well as significant restrictions on court operations, ultimately affecting access to justice.

            Mr. Whisler asked for the authority to appoint a bi-partisan Blue Ribbon Commission made up of lawyers from throughout the state to further determine the appropriate response for The Missouri Bar when the judiciary and individual judges are unfairly and inaccurately criticized. It was moved, and seconded. The motion was approved.

            Illinois Supreme Court Ads

            Several ads from the contested Illinois Supreme Court race were played for the Board. Mr. Whisler informed the Board that more than $10 million dollars had been spent on these campaigns.

            Midwestern Conference on Multijurisdictional Practice Issues

            Mr. Whisler reported on a meeting held recently in Kansas City with leaders from bar associations of eight bordering states. They discussed MJP, CLE reciprocity, and other issues. He indicated that restrictive MJP initiatives and rules were recently instituted in Illinois and Oklahoma, precluding reciprocity with those states. He further reported that CLE reciprocity is expected with Kansas.

            Casemaker

            Mr. Birkes updated the Board on Casemaker, a basic computer research tool, which the Ohio Bar Association owns and offers to other bar associations on a non-profit basis. Bar associations throughout the country have been contracting for access to the research tool, which is then offered to members free of charge. The cost is approximately $250,000 per year, and he reported this might be something that The Missouri Bar would want to consider providing as a member benefit. Currently 22 states take advantage of Casemaker. More information will be provided at future meetings.

There being no further business, the meeting was adjourned.

Respectfully submitted,

Keith Birkes, Secretary