Board Minutes - July 22, 2005

Country Club Hotel, Lake of the Ozarks

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
Honorable Richard Bresnahan
Newton C. Brill
Thomas M. Burke
Thomas J. Casey
Dana Tippin Cutler
Sherry Doctorian
Carol Chazen Friedman
Chad A. Gaddie
Mike Greenwell
Charlie J. Harris
Edward J. Hershewe
Bruce F. Hilton
John S. Johnston
George E. Kapke
Honorable John F. Kintz
Thomas M. Lang
William J. Lasley
Mark H. Levison
Max E. Mitchell
John A. Ruth
Allan D. Seidel
Robert H. Shaw
Wallace Squibb
Alok K. Srivastava
Lynn Whaley Vogel
Hope E. Whitehead
James C. Wirken
Eric J. Wulff

Present by Telephone:
Karen R. McCarthy
Daniel A. Raniere

Members Absent:
Richard F. Halliburton
Vincent F. Igoe, Jr.
Sylvester "Sly" James, Jr.
Richard G. Steele
H.A. "Skip" Walther

Also Present:
Millie Aulbur
Catherine Barrie
Carla Counsil
Hon. Ann Covington
Doreen Dodson
Lenin V. Guerra
Chris Janku
Dan Lehmen
James McConnell
Stephen Murrell
Linda Oligschlaeger
Mark Pasewark
Maury Poscover
Delores Shepherd
Kim Shields
Robert Stoeckl
Gary Toohey
Samantha Ward
Jack Wax

1. Minutes:

It was moved and seconded that the minutes of the meeting of the Board of Governors of May 13, 2005 and of the Executive Committee of May 13 and July 1-2, 2005 be approved. Ms. Friedman amended the motion and it was seconded to correct the May 13, 2005 minutes to indicate that she was not present at the meeting. The motion was approved.

2. Financial Report:

A. Financial Statements

Mr. Burke reported that the Finance Committee met in the morning to discuss the financial report. He reported that the Bar continues to operate in a strong financial position, with receipts and disbursements tracking with the 2005 budget. Financial Statements were distributed in the meeting materials. No action was required.

B. 2004 Missouri Bar Audit

Mr. Burke also reported that Williams- Keepers completed the annual audit, and the Bar received a good report through December 31, 2004, with no discrepancies in the financial position. A copy of the audit was distributed to the Board.

C. Annual Meeting Report

Mr. Burke submitted for approval the 2005 Annual Meeting budget. It was moved and seconded that the budget for the 2005 Annual Meeting be approved. The motion was approved.

3. Legislation:

Catherine Barrie reported that seven committee-drafted legislative proposals are currently expected for the 2006 Legislative session. They include two proposals from Property Law, one each from Animal Law, Delivery of Legal Services, Eminent Domain, Probate & Trust Law, Elder Law and the Client Security Fund. She reported that no action was required at this time and that all of the legislative proposals will be circulated to local bar associations within the state, as well as to the Legislative Committee, and they will be brought before the Board in September.

Ms. Barrie reported that the Executive Committee, during their retreat, reviewed the legislative process used for the Bar to review, take positions and communicate those positions to legislative sponsors. She reported that this review revealed that the written policy does not reflect the predominant role of the Executive Committee in this process; a role needed in order to take action in a timely fashion during the legislative session. Ms. Barrie circulated a revised policy incorporating changes that make the policy more consistent with the actual review process used to review and take positions on this legislation. Another change was made requiring that anytime the Executive Committee meets and takes a position on this legislation, that position will be sent to the Board of Governors via the listserve prior to any communication with legislative sponsors or others outside of the Board. It was moved and seconded that these changes in the Board of Governors' legislative policy be made. The motion was approved.

Mr. Whisler stated that, in the future, when the Executive Committee decides to oppose a bill, an officer of the Board may contact the bill's sponsor to communicate the issues behind the Bar position prior to formal notification by letter. Mr. Whisler also announced that any member of the Board can listen in on the conference calls of the Executive Committee when they are reviewing and taking positions on legislation, by simply contacting Mr. Birkes and indicating an interest to be on the call.

4. Appointments:

A. July Appointments

(1) Alcoholism Intervention Committee

The terms of Mr. Robert W. Richart of Joplin and Mr. Danny L. Curtis of Kansas City are expiring. Both are eligible for another term. It was moved and seconded that both committee members be appointed for another term. The motion was approved.

B. September Appointments

Joe Whisler announced that September appointments to the Missouri Press-Bar Commission, Trustees of The Missouri Bar and the Complaint Resolution Committee were provided for information purposes and as advance notice with no action needed at this time.

5. Committee Reports:

A. Commission on the Impartiality of the Judiciary

Judge Ann Covington presented the final report of the Missouri Bar Commission on the Independence of the Judiciary. She reported that the Commission had been appointed to (1) identify appropriate involvement of The Missouri Bar in defending the judiciary and/or the individual judge who, from time to time, may be subject to unfair or inaccurate criticism, and (2) to determine means by which to defend Missouri's Non-Partisan Court Plan. She explained that the Commission produced three separate reports. The first report provides the standards of response to unfair/inaccurate criticism, providing guidelines for the Bar to evaluate if and when the Bar should respond, as well as suggestions for the timing, form and method of response. The second report identified ways to further educate the Bar and public about the Missouri Plan, recommending audiences to target for educational efforts about the Plan and suggesting means for reaching those audiences. This includes use of current Bar resources, additional information on the Bar Website, the development of a separate specifically focused resource Website and involving non-lawyers in the educational process. She explained that the third report considered the effectiveness of the Missouri Non-Partisan Court Plan including a brief history and the positive benefits of the Plan.

Judge Covington cautioned the Board about potential misinterpretation of the report by elected judges within the state because of its strong focus on the preservation of the Non-Partisan Court Plan. She suggested that it would be important to explain that this report was undertaken to defend attacks specifically initiated against the Non-Partisan Court Plan and not intended as contrast or criticism of judges who are not under the plan.

Discussion ensued whether there should be a specific definition included for the phrase "judicial independence." Judge Covington explained that the Commission discussed this issue at great length and found that the possibility of different interpretations of this phrase, both positive and negative, were problematic. The Commission strongly suggests that for these reasons the phrase "fair and impartial judiciary" be used. She explained that the use of "judicial independence" was used in the report because the committee was denominated using that term. Other discussion clarified the "duty of lawyers to defend the judiciary against unfair criticism" as being in the comments of Rule 4-8.2 and considered the value and effectiveness of the current method of judicial evaluation.

It was moved, and seconded that the Report of the Missouri Bar Commission on the Independence of the Judiciary be adopted as the policy of The Missouri Bar. The motion was approved. Mssrs. Wulff and Lasley voted no.

B. Ethics 2005

Chris Janku reported that the Ethics 2005 Committee completed it review of the various positions previously taken by the Board of Governors regarding proposed amendments to Rule 4 Rules of Professional Conduct, and with the exception of some very minor changes reflecting suggestions from the OCDC, continues to endorse the previous positions as communicated to the Supreme Court of Missouri for consideration. Mr. Janku reported that Chief Justice Ronnie White had requested the review and a clarification of The Missouri Bar position after having received four different reports, reflecting the work and review of different committees during the past three years. Reports were submitted on the Ethics 2000 amendments to the ABA Model Rules of Professional Conduct, lawyer advertising, multijurisdictional practice and lawyer confidentiality. It was moved, and seconded to communicate that the Board continues to endorse the Bar positions as previously submitted to the Supreme Court of Missouri, subject to the minor modifications noted above. The motion was approved.

C. Client Security Fund Committee

Mr. McConnell reported that, at the request of President Whisler, the Client Security Fund Committee has initiated the study of an overdraft notification rule. He further reported that the committee has asked for and received permission to involve OCDC in the process because such a rule would have some impact on the OCDC staff resources and responsibilities as part of the investigation process. He reported the Committee would be working with OCDC to develop a rule that OCDC and the Committee finds realistic and then submit that rule to the Board at a future meeting.

He also reported that the Committee has submitted an insurance notification legislative proposal to Legislative Counsel Catherine Barrie as required under The Missouri Bar's legislative process. He reported that it may be possible that such a rule could be established by the Department of Insurance or it may require legislation. He further reported that the Committee is studying methods used in other states to obtain restitution from attorneys who cause losses by going after them civilly and taking a more aggressive approach. The Committee may bring recommendations in this area before the Board later in the year.

He advised the Board that the Committee believes that an appropriation increase will be needed for the Client Security Fund in 2006. He stated that payments from the Client Security Fund during the past 5 years have exceeded the annual appropriation by a cumulative total of $251,797.56.

Mr. McConnell proposed three changes to the Regulations and Rules of Procedure that govern the Client Security Fund. He submitted an amendment to Article 2.1 to increase the limit on small claims payable throughout the year from $1,000 to $2,500. He explained that adoption of this amendment would permit the Committee to provide more prompt resolution of some claims for people who oftentimes really need the money. He also submitted an amendment to Article 3.1 to increase the cap on payments from $20,000 to $50,000 and the amount of the claims exempt from the 20% reduction in payment increase from $1,000 to $2,500. He advised the Board that the current limits have been in place since 1994 and that Missouri's $20,000 cap has not kept pace with the limits in other states. The Board discussed whether the existence of the Fund and actions to raise the $20,000 cap would have some negative impact on the decision by lawyers to carry malpractice insurance. It was clarified that the Fund covers claims related to the intentional acts, rather than the negligent acts of a lawyer, and malpractice insurance does not cover intentional acts. It was moved and seconded to adopt both amendments. The motion was approved. Mr. Wulff voted no on both amendments, Mr. Shaw voted no on the second amendment.

D. Solo and Small Firm Committee

Mark Pasewark presented a proposed rule to secure leave periods for attorneys. The proposed rule would amend Rule 43.01and create a new rule allowing any attorney to from time to time designate and enjoy one or more secure leave periods each year where the lawyers would be free of urgent demands of professional responsibility. A proposed amendment under Rule 43.01 would also regulate service actions by attorneys that take advantage of a lawyer's absence. Discussion followed with questions regarding the practical application of the leave period rule and potentially ambiguous language in the proposed amendment to Rule 43.01. It was moved and seconded that the matter be tabled and the proposal be considered again in September. The motion was approved. Ms. Friedman and Mr. Seidel voted no. A separate motion was made and seconded, that the Board of Governors endorse in concept the secure leave period for attorneys without endorsing the specifics of this proposal and that this proposal be referred to the Missouri Bar Rules Committee. The motion was approved.

E. ABA Delegates

Doreen Dodson and Maury Poscover reported on a number of governance issues on the agenda for the upcoming meeting of the ABA House of Delegate in August. Ms. Dodson and Mr. Poscover provided a detailed review of background information and outlined the various positions taken by different constituencies within the ABA as they relate to the proposed changes, giving particular attention to proposals that impact state bar association involvement. Both Ms. Dodson and Mr. Poscover requested comments from Board members on any of the issues that they may find important. It was moved, and seconded that the Board of Governors express confidence in the judgment of the delegates to consider and decide on the proposed changes as they develop at the ABA meeting.

Ms. Dodson also reported on two other resolutions on the ABA agenda. One resolution (Report 107) from the Standing Committee on Legal Aid and Indigent Defense proposes increased funding for indigent defense organizations in states and territories. Ms. Dodson explained that this resolution tracks with what Mr. Copeland and Mr. Whisler had been working on in Missouri. Another resolution (Report 111) is related to preserving attorney-client privilege and was initiated in response to the Sarbanes-Oxley Act. That resolution opposes any policies by governmental agencies that erode these privileges for either corporate or individual clients.

Ms. Dodson also provided an informational report on an ABA Central European and Eurasian Law Initiative (CEELI) project on judicial independence. She explained that CEELI is a nonpartisan organization of lawyers and judges who go to other countries and help them develop constitutions and laws and advise them on their judicial process. They set up what is called a "reform index" that had been used particularly in emerging systems to look at the justice systems and evaluate how independent, fair and accountable it is.

She further reported that this group has been developing an "index tool" as part of a project on judicial independence that could be applied to mature judicial systems within the United States, assessing state systems in four different areas (1) judicial independence, (2) autonomy of the judicial branch, (3) effective delivery of legal services, and (4) accountability of the judiciary. She reported that the ABA is interested in funding pilot projects to test the tool in a few states. At the request of the committee, Ms. Dodson contacted Judge Wolff at the Supreme Court of Missouri to see if there would be any interest in participating. Judge Wolff and the other members of the Court were enthusiastic to participate. Judge Wolff expects to kick this off at the Annual Meeting. Ms. Dodson reported that part of the process will require lawyer involvement. No action was required. Some concern was raised that participation in this type of effort may provide the impression to the public that the Bar is "circling the wagons" in regard to the judiciary.

F. Leadership Academy

Kim Shields and Lenin V. Guerra reported on the community service project of the 2004-05 Leadership Academy. Ms. Shields thanked the Board of Governors for initially creating and continuing to fund the Leadership Academy. She reported that the Academy's 2004-05 projects grew out of a focus on the need for domestic violence resources and in response to the growth of the Hispanic population within Missouri. She reported that the Academy reviewed, edited and updated both the English and Spanish version of The Missouri Bar domestic violence brochure. In addition, the Academy translated The Missouri Bar's Durable Power of Attorney advance directive into Spanish. Mr. Guerra provided details regarding the significant growth of the Hispanic population within the state and illustrated the impact that this work would have on the community. Mr. Whisler reported that the Spanish version DPA would be added to The Missouri Bar Website and suggested that the Bar consider creating a PSA in Spanish to publicize the resource.

At the conclusion of the report, each member of the Leadership Academy reported his or her individual plans to fulfill the two-year commitment to The Missouri Bar, following the end of this Leadership Academy year.

G. Young Lawyers Section

Alok Srivastava reported that the Young Lawyers' Section would be conducting a long range-planning meeting during the afternoon.

6. Officers Report:

A. Executive Director's Report

(1) Committee Reports

Mr. Birkes called the Board's attention to a number of reports distributed in the meeting material including a report from the (1) Complaint Resolution Committee; (2) Missouri Lawyers' Assistance Committee (MOLAP); and (3) a report outlining the results of a mini-survey conducted regarding the Journal of the Missouri Bar.

(2) Board of Governor Election

Mr. Birkes reported that ballots were mailed last Wednesday, July 13, to lawyers in the five districts where contested Board of Governors elections are being held. He advised that lawyers running from those districts would be communicating with members of the districts in a variety of ways in the next few weeks. Results will be tabulated on August 15 and released after certified by the Clerk of the Supreme Court of Missouri.

(3) Annual Meeting

Mr. Birkes reported that the Annual Meeting second notice is complete and will be mailed to the membership next week. He commended the work of the planning committee, and its chair, Alan Gallas, for all their efforts in developing an outstanding program for the meeting.

B. Vice-President's Report.

Mr. Baird had no report.

C. President-Elect's Report.

Mr. Copeland reported that efforts were underway for The Missouri Bar's Task Force to address the Public Defender crisis within the state. He reported that initial information indicates that a major part of the crisis relates to a lack of funding, citing the fact that the Public Defender System has not received an increase in six years. He also reported that staffing issues and caseload volume are major issues. He reported that the task force is addressing the crisis with both a short-term and long-term approach.

(a) Short-Term Efforts

Short-term efforts include asking private practice lawyers to volunteer to handle some of the relatively simple, traffic related cases of the Public Defender office. He reported that the Bar has received a good response and reiterated that this initiative is intended to relieve pressure on the system while work is underway for a long-term solution.

(b) Long-Term Solution

Mr. Copeland described the long-term work of the task force as an effort that will examine and analyze the Public Defender system, including a candid look at the economies and efficiencies within the system. This would focus on all aspects of the problem, address all actions that the legal community can do to assist the system, and address remaining options that are likely to involve an increase in funding or a reduction in responsibilities. He described this work as essential in order to ensure that a good case could be presented to the Legislature for increased funding.

(c) Task Force Meeting and Composition

Mr. Copeland reported that the Task Force is made up of different constituencies of the criminal justice system and the Legislature, including representatives from the Missouri Attorney General's office, the prosecutors' association, the Missouri House and Senate, members of the Board of Governors, the private bar and the Public Defenders Commission. Some of the key issues relate to excessive caseload and difficulty in maintaining sufficient staffing due to funding shortages. In addition, the task force will go outside of Missouri, examining the circumstances in other states with some of the same problems.

Mr. Copeland reported that Robert Spangenberg of The Spangenberg Group attended the first meeting of the task force. He reported that Mr. Spangenberg is a national expert on public defender systems, renowned for providing an objective analysis assessing systems and making recommendations on how to improve and solve related problems and that Mr. Spangenberg was familiar with Missouri's system from past involvement. He explained that Mr. Spangenberg's involvement related to the current crisis within our state has been funded by the ABA.

(d) Proposal to Conduct an Initial Assessment of The Missouri Public Defender System

Mr. Copeland reported that the Task Force is requesting funding to hire the Spangenberg Group to conduct an assessment of our system. He stated that Mr. Spangenberg would bring an independent analysis, national perspective and new ideas to the process. He reported that timing is a very important consideration, if the Task Force is going to be able to address this issue in the upcoming legislative session. Consequently, Mr. Copeland requested that the Board authorize $26,300 from reserves to hire The Spangenberg Group. If hired right away, The Spangenberg Group would be able to complete the assessment and produce a report and recommendations by mid-October. Mr. Copeland explained that, if time were not an issue, other potential funding sources might be available. Mr. Copeland reported that he and Mr. Birkes have discussed funding with The Missouri Bar Foundation and have approached the ABA for funding. The ABA is at the end of its funding cycle and the possibility of receiving funding will become clearer after the ABA Annual Meeting in August. The Public Defender System itself is also a potential source of partial funding. He assured the Board that he will continue to pursue funding from these other sources to offset the $26,300 appropriation requested. Mr. Copeland indicated that this fee would not include Mr. Spangenberg speaking before the Missouri Legislature. Instead, Mr. Copeland indicated that Task Force members would be used in this role. It was moved and seconded that $26,300 be authorized for use by the Task Force to hire Mr. Spandenberg. The motion was approved.

Mr. Copeland briefly outlined the areas he expects to focus on as the next President of The Missouri Bar. They were as follows:

(1) Crisis within the Missouri Public Defender System

Outlined above.

(2) Issues Related to Missouri's Judiciary

These will include funding of the Judiciary, the judicial indexing project, and educating the public about the Non-Partisan Court Plan prior to the retention elections in 2006.

(3) Developing Relationships with the Missouri General Assembly

This will include asking Board members to actively cultivate relationships with the legislators in their districts.

(4) Relationships with Other Bar Associations

This will include inviting local and specialty bar leaders to take part in a Missouri Bar hosted conference, designed to improve communication and foster cooperation on issues of mutual interest.

(5) Research Tool

This will include appointing a task force to review the basic legal research tools on the market and make recommendations related to the products for the Board to consider funding as a member benefit.

(6) Committee Liaison Appointments

This will include assigning multiple liaisons to some committees in an effort to improve the level of involvement between the Board and the more active committees.

(7) Mid-Year Meeting

Mr. Copeland reminded everyone that the Mid-Year meeting will be at the Marco Island Hilton and asked Board members to encourage attendance by lawyers within their districts.

D. President's Report.

(1) Dissemination of Durable Power of Attorney

Mr. Whisler reported that the Missouri Bar Website has received more than 45,000 hits on the Durable Power of Attorney. He thanked everyone for helping in this effort.

(2) Co-Sponsorship of State Bar of Texas Resolution

He reported on a resolution the state Bar of Texas is recommending to the American Bar Association House of Delegates and asked the Board to consider the co-sponsorship of the resolution, which reads: RESOLVED, the American Bar Association deplores attacks on the independence of the judiciary that demean the judiciary as a separate and co-equal branch of government. FURTHER RESOLVED, the American Bar Association affirms its belief that a fair, impartial, and independent judiciary is fundamental to a free society and calls on all Americans, including elected officials, to support and defend our judiciary and its role in maintaining the fundamental liberties under the Constitution of the United States. FURTHER RESOLVED, the American Bar Association will accelerate its effort to provide public education on the system of justice and assist organized bars in responding to unjustified criticisms and inaccuracies regarding the justice system." A motion was made, seconded and approved to communicate to our state ABA delegate that The Missouri Bar would like to be a co-sponsor of this resolution.

(3) Advisory Committee for the OCDC

Mr. Birkes reviewed previous action taken by the Board of Governors, in support of expanding the OCDC Advisory Committee and giving that committee specific oversight authority over the Office of Chief Disciplinary Counsel. He reminded the Board that this recommendation had been made to the Supreme Court of Missouri one and one-half years ago. He reported that in response to that recommendation, the Court did expand the advisory committee and gave the committee an informal opportunity to exercise an undefined oversight role, rather than the specific authority suggested. He further reported that this action appears to have created significant ambiguity regarding the Advisory Committee's authority.

Mr. Birkes further explained that OCDC is requesting a dues increase for next year, despite a variety of efforts to defer such a request, including efforts by the Advisory Committee. He further reported that this request will be considered at the August Conference of the Supreme Court of Missouri.

In response, Mr. Birkes asked the Board of Governors for the authority to once again renew The Missouri Bar's recommendation that the Court give very specific oversight authority over OCDC to the Advisory Committee. He also asked for authority to communicate to the Court, The Missouri Bar's opposition to an OCDC dues increase next year. He reported that such action would be taken after properly vetting the reasons for our recommendation and opposition with the Advisory Committee and the Court's liaison to the Advisory Committee, Judge Mary Rhodes Russell. It was moved, seconded and unanimously approved. Mr. Johnston abstained

7. Public Service Announcements

Mr. Birkes announced that the television and radio public service announcements, produced by The Missouri Bar would be shown at the conclusion of the meeting. Several of the announcements related to the impartiality of the judiciary and the Nonpartisan Court Plan.

There being no further business, the meeting was adjourned.

Respectfully submitted,

Keith A. Birkes, Secretary