Board Minutes - May 12, 2006

Jefferson City, Missouri

Members Present:
Douglas A. Copeland, President
C. Ronald Baird, President-Elect
Charlie J. Harris, Jr., Vice-President
Joe B. Whisler, Past President
Keith A. Birkes, Secretary
Erik Bergmanis
P. John Brady
Hon. Richard Bresnahan
Newton Brill
Thomas M. Burke
Thomas J. Casey
Sherry Doctorian
Carol Chazen Friedman
Chad A. Gaddie
Mike Greenwell
Richard F. Halliburton
Bruce F. Hilton
John S. Johnston
Jennifer M. Joyce
George E. Kapke
Hon. John F. Kintz
Thomas M. Lang
William J. Lasley
Karen R. McCarthy
Max E. Mitchell
Matthew M. Mocherman
Douglass F. Noland
Daniel A. Raniere
John A. Ruth
Allan D. Seidel
Alok K. Srivastava
H.A. “Skip” Walther
James C. Wirken
Eric J. Wulff

Members Absent:
William R. Bay
Joseph C. Blanton, Jr.
Dana Tippin Cutler
Edward J. Hershewe
Vincent F. Igoe, Jr.
Sylvester James, Jr.
Walter R. Simpson
Wallace Squibb

Also Present:
Millie Aulbur
Catherine Barrie
James Brady
Michelle Coleman
Doreen Dodson
Kent Hopper
Chris Janku
Dan Lehmen
Stephen Murrell
Delores Shepherd
Robert Stoeckl
Gary Toohey
Samantha Ward
Jack Wax
Sam Phillips

1. Minutes:
It was moved and seconded that the minutes of the meetings of the Board of Governors of January 20, 2006 and of the Executive Committee of January 20, 2006, February 6, 2006, March 6, 2006, April 6, 2006, and May 1, 2006 be approved. The motion was approved.
2. Financial Report:
Mr. Burke reported that The Missouri Bar is in good financial condition and operating within budget with receipts and expenditures on track for the current period in 2006. No action was taken.
3. Legislation:
Catherine Barrie reported about several Bar-drafted legislative measures proposed for the 2006 legislative session. The Probate and Trust Law Committee drafted legislation making technical amendments to the Missouri Uniform Trust Code. This legislation was added as an amendment to a banking bill, SB 892, which has passed and will be delivered to the governor.
The Real Property Committee drafted the Uniform Real Property Electronic Recording Act, introduced as HB 1324 and SB 924. The measure passed the Senate, but stalled in the House due to an issue about who should be on the oversight commission with Missouri’s Secretary of State wanting more representation. This committee also drafted the Uniform Residential Satisfaction Act, introduced as HB 1717. This bill was opposed by the Missouri bankers, who objected to a self-help mortgage satisfaction component. Their concerns included the potential for fraud, and their interpretation that the bill usurps rights that are unique to the bankers. Members of the Property Law Committee will meet with bankers’ interests to work out differences later this summer and hope to reintroduce a measure in the next session.
The Animal Law Committee drafted legislation to simplify and clarify the substantive neglect statute by referring to definitional provisions rather than restating the harm necessary to support the charge. The legislation, while well received in committee, received opposition from lobbyists for animal breeders. The committee plans to identify ways to work with lawyers who represent breeders to move the measure forward in the next session.
The Elder Law Committee introduced a measure pertaining to changes in the “right of sepulcher.” This measure made little progress. Suggestions that future drafting should address the issues in a different way will be considered.
Ms. Barrie further reported that the sunset provision on the Legal Services filing fee, set to expire in 2007, is part of an Omnibus Judicial Bill, SB 1058, which was sent to conference yesterday, but has not passed yet. A list of all bills truly agreed and passed as of today has been circulated to the Board.
4. Appointments:
A. Fee Dispute Resolution Committee
Mr. Copeland reported that the terms of Mr. David Macoubrie of Chillicothe and Ms. Anna Marie Wingron of St. Louis are expiring and that they are eligible for reappointment. It was moved, seconded and approved to reappoint both to the committee.
B. ABA House of Delegates
Mr. Copeland reported that the Executive Committee is recommending that the Board table the appointments of these delegates until the July board meeting. It was moved, seconded and approved to take up the ABA House of Delegate appointments at the July meeting.
C. Alcohol Intervention Committee
President Copeland informed the board that Mr. Jeff Thomsen’s term is expiring on the Alcoholism Intervention Committee. Mr. Thomsen is eligible for reappointment, and this appointment will be addressed at the July board meeting.
5. Committee Reports:
A. Gender and Justice Committee
Ms. Joyce reported that the committee expressed appreciation to the board for providing funding to conduct a follow up survey focusing on gender issues and the discussion at their meeting centered on how to conduct the new survey, looking at the survey instrument and methodology. And the committee expects to bring the survey instrument to the Board in September or November.
The committee also discussed the lack of gender and ethnicity information collected by the bar and how those data limitations affect the methodology and analysis. She indicated that the same issue was discussed in the meeting of minority leaders held just prior to the Spring Committee meetings and suggested that The Missouri Bar reconsider this issue of collecting such information about its members. The Gender and Justice Committee agrees that it would be useful in their survey analysis. President Copeland reported that the issue did come up during the minority leaders meeting and that group indicated that it would be helpful in identifying and recruiting membership to those specialty bars. information.
B. Client Security Fund Committee
Chris Janku reported that the Client Security Fund Committee voted to recommend an amendment to the Client Security Fund Regulations and Rules of Procedure, clarifying when claims would be eligible for consideration by the Client Security Fund Committee. The proposed amendment to Article 2.2(d) would make it clear that the committee can consider a claim if the suspended lawyer has been placed on probation. The Office of Chief Disciplinary Counsel expressed support for the change. It was moved, seconded and the proposed amendment was approved. Mr. Wulff voted no.
C. Delivery of Legal Services Committee
Mr. Halliburton reported on the Legal Services use of the funds generated by the $20 bar dues increase. He reported that the fee and the pro hoc vice funds are currently bringing in about $588,000 a year statewide for Legal Services, about 4 percent of the funding in Missouri. The use of the unrestricted funds varies depending on the needs of the different LSC programs in the state, including being used as matching funds to leverage and gain additional grant funds from other sources, a particularly important function due to the downward trending of federal funding to LSC.
He also reported that the committee discussed a proposal by a Special Task Force of the ABA, which is expected to propose the establishment of a “Gideon” right to counsel in civil cases at the August meeting of the Board of Delegates. He reported that the Delivery of Legal Services had not seen the actual proposal, but supports the concept and anticipates that the issue will be raised and discussed, with a possible request for board action in the future.
He reported also that the committee discussed a number of approaches and ideas to increase pro bono activities by lawyers and anticipates developing a proposal in this area for Board action in the near future.
6. Officers Report:
A. Executive Director’s Report
(1) Summer Board Meeting
Mr. Birkes reported that July Board Meeting at Big Cedar was on track. Reservations have been made for all board members and he informed the board to contact him with any questions.
(2) Conflict of Interest Policy for Missouri Bar Authors
Mr. Birkes reported that Executive Committee had asked staff to come up with a brief and simple policy on conflicts of interest for authors of Missouri Bar publications. The proposed policy simply asks authors to disclose any conflicts that appear to be significant. A procedure would be put in place where staff will try to resolve the conflict(s). If staff is unsuccessful, the Executive Committee will be asked to get involved. It is not expected that the Executive Committee will be asked to be involved very often. He reported that the Executive Committee reviewed the proposed policy and recommends board approval. It was suggested that the proposed language be amended in the third bulleted section to change the word “shall” to “may” and the policy be adopted as amended. It was moved, seconded and approved as amended.
(3) Membership Directory of The Missouri Bar
Mr. Birkes reported that the company that annually prints the directory of Missouri Bar lawyers has informed the Bar that it does not plan to print the directory any longer. Consequently, the free directory will not be published and distributed next year. It was pointed out that many lawyers choose to buy the “Blue Book” directory and The Missouri Bar may be inclined in the future to endorse that directory.
(4) Judicial Evaluation Survey
Mr. Birkes reported that almost all of the information has been collected to prepare the evaluations on judges who are standing for retention this fall, and the evaluations are being prepared for distribution to members of the bar. He also reminded the board that a committee chaired by Dale Doerhoff had recommended that we also ask jurors for their impressions of judges who are standing for retention. Work has been underway with St. Louis County judges and Presiding Judge Carolyn Whittington to develop a pilot survey questionnaire for jurors. Content has been finalized and work is underway on the mechanics of how the pilot evaluation will be distributed. The results of this trial effort are expected to be available when the results of our judicial evaluation survey are released later this summer, and it is expected that the juror evaluation would be expanded to the nonpartisan court circuits throughout the state in the future. The juror information will be of value to voters and will also make the survey of greater interest to the media than it is right now.
(5) Special Committee on Law Internship
Mr. Birkes reported that Joe Blanton chaired a special committee looking at law internships. The committee has completed its review of programs, which included a specific program in Oklahoma, and concluded that it is not a good program for Missouri. Mr. Blanton wanted to inform the board that the committee’s deliberations are complete and they intend to stop meeting.
B. Vice-President’s Report
Mr. Harris reported that the Mid-Year Meeting for 2008 will be held in the Bahamas.
C. President-Elect’s Report
(1) Civic Education Initiative
Mr. Baird reported that the Civics Education Committee met twice. The committee conducted an inventory of the information, materials and civic- education related programs and alliances currently in place at The Missouri Bar.
The committee agreed to focus on the short-term goal of capturing Constitution Day in September and Bill of Rights Day in December within high schools in Missouri, with activities and resources to improve civics education and associate both days with the lawyers and judges of The Missouri Bar. Programs are planned to utilize technological capabilities in conjunction with the Missouri School Boards’ Association to transmit on those days an interactive Internet-based program featuring Chief Justice Michael Wolff, Judge Mary Rhodes Russell, MU Deputy Chancellor Michael Middleton and Mr. Baird. Schools throughout the state will be able to take part live, using the IP technology.
Long term goals were also identified to involve judges and lawyers in the effort of The Missouri Bar to “own” these two days. These efforts will include developing and making available a variety of resources for lawyers and judges to use at schools and at other venues in their local communities. Resource materials will include pamphlets, speeches and videos. Mike Greenwell and William Bay will be co-chairs overseeing these efforts. He encouraged board members to share any suggestions they may have in this area.
(2) Online Legal Research
Mr. Baird reported that this committee recently held its second meeting at Lake of the Ozarks and heard presentations from four vendors that offer online legal research technology. The committee narrowed the field to two vendors – CaseMaker and FastCase. Both vendors provided the committee with passwords, so committee members can use their product on a trial basis. Several committee members are testing the products and the committee is planning to be ready to provide a recommendation to the board at the July meeting. The anticipated cost appears to be very reasonable and both vendors are very competitive in terms of pricing, far lower than initial costs quoted in previous years.
D. President’s Report
(1) Status of the Missouri Public Defender System
Mr. Copeland reported that efforts to increase funding in the 2007 state budget for the Public Defender System were successful. Approximately $2 million dollars was added to the judiciary budget approved last Friday. These funds will be used to increase the low salaries and help stem public defender turnover, calculated at 100% over the past five years.
He reported that caseloads will be the next area of focus. Indications are that a clear case can be made that public defenders are attempting to handle too many cases. The focus for next year will be to form a consensus as to what the proper caseload should be. He anticipates engaging professional assistance to develop a weighted caseload study within Missouri, taking into consideration the different time commitments and costs that may apply to a public defender’s work in urban versus rural areas of the state. Once an appropriate caseload and the additional personnel needs to handle those caseloads are established, the information will be used to engage the support of the Legislature to provide additional funding.
He also discussed efforts to change the law for some offenses – possibly some driving offenses – so they do not carry a penalty involving the potential loss of liberty and would not require the appointment of a public defender, thus reducing the caseloads. He indicated that efforts initiated this year were unlikely to be successful, but reported that work is underway by a subcommittee of the Public Defender Task Force to develop legislation that could be introduced in next year’s session.
(2) Unauthorized Practice of Law Committee
Mr. Copeland reported that Tom Casey was appointed to chair a new Unauthorized Practice of Law Committee, which held its first meeting today. The committee began the process of examining the offer extended by the Office of Chief Disciplinary Counsel to partner with them in some way, shape or form to get a handle on the unauthorized practice of law and enforce statutes in a way that the OCDC has not been able to, given the manpower needed to locate, investigate and prosecute those types of cases.
(3) Unbundled Legal Services Committee
Mr. Copeland reported on the work of an Unbundled Legal Services Committee, chaired by Alan Gallas. The committee is looking at how lawyers may be able to handle only a portion of a case without risking malpractice or ethics rules violations. He reported that this committee will examine how the unbundled approach has been implemented in other states and whether it is a good thing for Missouri. A report and recommendations are expected in the fall
(4) Dues Protest and Refund Policy
Mr. Copeland reported that the Executive Committee has been communicating with an attorney in St Louis who has challenged the payment of his bar dues, suggesting that he is entitled to at least a substantial, if not a total refund of his bar dues, on the basis that The Missouri Bar is expending funds in excess of what is allowed for an integrated bar. Offers have been made to discuss specifics with the attorney, but to date, he has declined. The Bar has offered to mediate and pay for mediation. The attorney has declined.
(5) Attorney-Client Privilege
Mr. Copeland reported that The Missouri Bar had responded to a call from the President of the ABA and wrote letters commenting on the policy of the U.S. Sentencing Commission and a practice of the U.S. Department of Justice requiring corporations and other organizations to waive their attorney-client privilege and work product protections during government investigations to qualify for leniency in charging decisions. He advised the Board that the U.S. Sentencing Commission reversed this policy.
(6) Legislative Matters
Mr. Copeland reported on legislative matters of interest to the Board.
(a) Attacks on the Nonpartisan Plan
Mr. Copeland reported upon taking office he had anticipated legislative attacks on the nonpartisan court plan. He reported that significant attacks to the system have not materialized.
(b) Funding of the Judiciary
Mr. Copeland reported that this year’s efforts focused on supporting a salary increase for judges. He reminded board members that the judges have not received even a cost of living increase in six years. He reported that HJR 55, a legislative effort to place a constitutional amendment on the ballot this fall that could have the potential to provide a salary increase, has not yet been voted on.
(7) Judicial Assessment Project
Mr. Copeland reported that Judge Wolff would like to have comments back by June 30 on the Judicial Assessment Project report. Mr. Copeland suggested that due to time constraints the board members should review and send comments directly to Keith Birkes. The Executive Committee will be meeting before June 30 and try to assimilate all of those thoughts and comments into a comprehensive position and comment from The Missouri Bar. This assimilated version will be submitted to the Supreme Court by June 30.
The motion was amended that board comments are to be received by May 31 and the position and comments of the Executive Committee will be distributed to the full board before being transmitted to the Supreme Court of Missouri.
The motion was further amended that the assessment be circulated to key committees for comment as well under the timetable proposed and that those comments along with those of the board be assimilated and distributed to the board prior to being sent to the Court. It was moved, seconded and approved to adopt the suggested approach originally proposed by Mr. Copeland along with the amendments.
(8) Multidisciplinary Mental Health Matters
Mr. Copeland reported that the information compiled last year to produce a multidisciplinary handbook on mental health matters has been retrieved and work is underway to publish the booklet by the end of this year. The idea of the handbook, which grew out of a Govenor’s Task Force on the subject, is being designed for use by the public, EMTs, medical personnel and members of law enforcement.
(9) Annual Meeting
Mr. Copeland updated the board on the plans for the 2006 Annual Meeting, reminding the board that the meeting will be held at the Renaissance Grand Hotel in St. Louis, September 27 – 29. He reported that the Best of Missouri Reception will be held at the Edward D. Jones Dome with access to the field. Planning is moving along in the normal fashion as to the development of programs.
He also reported that the Renaissance Grand Hotel will not available in 2009 and efforts have been underway to identify another hotel for the conference. He further reported that the venue offering the best price and meeting facilities is the Adam’s Mark Hotel. He also reported that the Hilton Ballpark Hotel, formerly the Marriott, is also a possible location, but is more expensive. Mr. Birkes commented on past problems associated with the Adam’s Mark and indicated that efforts will be made to explore whether past issues persist among Missouri Bar membership or whether that hotel is a viable option. It was cited that BAMSL recently held a large gathering at Adam’s Mark.
(10) Missouri Bar Public Relations/Media Coverage
Mr. Copeland reviewed the institutional ads being distributed to the media. He reported that three ads are currently running and an additional ad focused specifically on the judicial retention election will be distributed for airing in August. All institutional ads were viewed.
There being no further business, the meeting was adjourned.
Respectfully submitted,
Keith Birkes, Secretary