Board Minutes - September 27, 2009

Renaissance Grand Hotel, St. Louis

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

William R. Bay

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

Edward J. Hershewe

Bruce F. Hilton

Vincent F. Igoe, Jr.

Jennifer M. Joyce

George E. Kapke

Hon. John F. Kintz

Thomas M. Lang

William J. Lasley

Mark H. Levison

Max E. Mitchell

Matthew M. Mocherman

Douglass F. Noland

Daniel A. Raniere

John A. Ruth

Allan D. Seidel

Walter R. Simpson

Wallace Squibb

Alok K. Srvastava

H.A. Skip Walther

James C. Wirken

Eric J. Wulff

Members Absent:

John S. Johnston

Sylvester James, Jr.

Karen R. McCarthy

Also Present:

Millie Aulbur

Catherine Barrie

Ann Bauer

Scot Bolton

Jim Brady

Patricia Fry

Alan Gallas

Wayne Greer

Kent Hopper

Chris Janku

Steve Jeffrey

Lori Levine

Dan Lehmen

Stephen Murrell

Linda Oligschlaeger

Sara Rittman

Tamra Wilson-Setser

Delores Shepherd

Hon. Dennis Smith

Robert Stoeckl

Gary Toohey

Samantha Ward

Jack Wax

1. Minutes:

It was moved and seconded that the minutes of the meetings of the Board of Governors of July 21 and of the Executive Committee of July 20 and September 7 be approved. The motion was approved.

2. Financial Report:

Mr. Burke reported that the status of The Missouri Bar’s finances is strong and that revenues and expenditures are tracking within budget through the third period of the year. No action was necessary. Mr. Burke also reported that he is completing his term as the chair of the Finance Committee. Mr. Copeland expressed the appreciation of the Board to Mr. Burke for his service.

3. Legislation:

Catherine Barrie reported on proposed changes to the policy statement regarding legislative procedures and Bylaws. She explained that in 2004 some minor changes were made in the legislative policy procedure to more closely reflect the role of the Executive Committee in taking positions on legislation when the General Assembly was in session and advising the Board of Governors of those decisions. It has been discovered that some companion changes are needed both in the policy statement and in the Bylaws as reflected in the attached document. The proposed changes will be taken up at the November meeting.

Ms. Barrie also reported that 10 legislative proposals have been received from Bar committees/sections for the consideration and approval of the Board of Governors as Bar-sponsored bills in the 2007 session of the Missouri Legislature, eight of which require action at this meeting.

A. 2007-1 (Animal Law Committee)

Associate Dean Tamra Wilson Setser reported on proposed legislation to repeal 578.009 RSMo and enact in lieu thereof one new section relating to animal neglect, with penalty provision. Ms. Wilson-Setser explained that the legislation had been approved by the Board of Governors the previous year, but had not passed in the Legislature. 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.

B. 2007-2 (Environmental & Energy Law Committee)

Mr. Steve Jeffrey reported on a proposed measure to amend 621.250 and 640.013 RSMo, authorizing environmental commissions and the Administrative Hearing Commission to render decisions based on summary determination, stating that the bill will allow for more timely and efficient decisions, benefiting the administration of justice. 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.

C. 2007-3 (Family Law Section)

Ms. Lori Levine reported on proposed legislation to enact the Uniform Premarital Agreement Act within Missouri. The measure addresses a uniform approach to the interpretation and construction of premarital agreements. She explained that Missouri currently has no law regarding premarital agreements and state appellate court decisions conflict in this area. Ms. Levine reported that the Family Law Section unanimously approved this proposed legislation. 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.

D. 2007-4 (Family Law Section)

Ms. Ann Bauer reported on proposed legislation to amend 454.850 to 454.997 RSMo, the Uniform Interstate Family Support Act to include amendments of 2001. Ms. Bauer explained that the proposed measure will help update, clarify and improve the handling of family matters, particularly in cases that cross state borders and will be particularly helpful in clarifying issues on where support will be initiated and enforced. 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.

E. 2007-5 (Family Law Section)

Ms. Ann Bauer also reported on a measure to amend 452.440 to 452.550 RSMo, the Uniform Child Custody Jurisdiction Act, changing the name to the Uniform Child Custody Jurisdiction and Enforcement Act. Thirty-nine states have adopted these uniform laws, including most of the states bordering Missouri. She noted that as with the other uniform measures being proposed today, a lot of litigation in the family area is related to issues and conflicts regarding custody, making it especially important for Missouri to be in line with neighboring states. 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.

F. 2007-6 (Probate & Trust Law Committee)

Scot Bolton reported that this legislation proposes a technical correction to the Missouri Uniform Trust Code 456.5-501 RSMo, adding a cross reference related to the section on the spendthrift protection of trusts. 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.

G. 2007-7 (Property Law Committee)

Professor Patricia Fry reported on proposed legislation to amend Chapter 59 RSMo to establish an Electronic Recording Commission to adjust standards necessary to implement electronic recording in Missouri, including the establishment of a commission to set uniform standards for the state. 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.

H. 2007-8 (Delivery of Legal Services Committee)

Richard Halliburton reported that the proposal would amend 477.650 RSMo, the Basic Civil Legal Services Fund, which is used as a mechanism to receive the filing fee surcharge funds earmarked for Legal Services. The current law contains a expiration date of December 31, 2007, and this measure would remove that provision. He reported that a similar provision in the bill that authorizes the collection of the surcharge was removed two years ago. Failure to remove this expiration date would not allow the distribution of funds collected to the four Legal Services programs in the state. 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.

I. 2007-9 (Elder Law Committee)

Catherine Barrie reported that the proposal regarding the Right of Sepulcher is being further considered by the Elder Law and Probate and Trust Law Committees and will be submitted for Board consideration in November.

H. 2007-10 (Delivery of Legal Services Committee)

Catherine Barrie reported that this proposal regarding a change in the mechanism for the distribution of the Legal Services’ share of the Tort Victims Compensation Fund from the “Legal Services for Low Income Fund” to the “Basic Civil Legal Services Fund” will be submitted for Board consideration in November.

4. Appointments:

A. Current Appointments

(1) Trustees of The Missouri Bar

Mr. Copeland reported that Mark Comley’s second term as a Trustee is expiring and he is not eligible for reappointment. Mr. Copeland reported that Mr. Comley is currently involved in and has played an integral role in the real estate transaction and construction of the Board of Law Examiners building and that the Executive Committee recommends keeping Mr. Comley involved, and utilizing his expertise, until the project is completed. It was moved and seconded that the appointment of Mr. Comley’s successor be deferred until that project is completed, possibly at the November meeting. Mr. Copeland further reported that John Ruth is willing to accept an appointment to the Trustees of The Missouri Bar.

B. November Appointments

(1) Client Security Fund

Mr. Christopher E. McGaugh’s term on the Client Security Fund Committee is expiring and he is not eligible for reappointment. Mr. Copeland reported that this appointment will be made at the November meeting and asked for recommendations from members of the Board.

(2) Missouri Press-Bar Commission

Mr. Copeland also reported that John Black’s term on the Missouri Press-Bar Commission is expiring and reappointment will be taken up at the November meeting. Mr. Black is eligible for reappointment.

5. Committee Reports:

A. Rules of Professional Responsibility

Sara Rittman reported that a conference call had been held with representatives of The Missouri Bar, the Missouri Bar Advisory Committee and OCDC to try to reach a consensus on several draft issues related to amendments to Rule 4 – Rules of Professional Conduct, as previously approved by the Board of Governors and recommended to the Supreme Court of Missouri in 2005.

Ms. Rittman reported that the participants on the conference call were able to reach a consensus on the remaining issues, but before the consensus position can be presented to the Supreme Court of Missouri for consideration, those positions that differ from the recommendation adopted by the Board of Governors in 2005 must be approved.

She reported that “informed consent” would be substituted for “consents after consultation” in Rule 4-1.0 and the terminology and other rules and comments would be amended as necessary for constituency in throughout the rules. It was moved and seconded that the consistency consensus position to amend Rule 4-1.0 as presented today be approved. The motion was approved.

Ms. Rittman reported that the changes agreed to for Rule 1.4 were not substantive, but reflect changes in the style of language. It was moved to approve Rule 1.4 as presented today. The motion was approved. Mr. Wulff voted no on the motion.

Ms. Rittman reported that the area of disagreement in Rule 1.5 focused the use of the word “association” in subsection (e). A consensus was reached that the word “association” would be used and the comments would include language specifically stating that disclosure to the client of the share that each lawyer would receive would not be required. It was moved and approved to approve Rule 1.5 as presented today. The motion was approved.

For Rule 1.15, the language included in paragraph (b) stating that “a lawyer may deposit the lawyer’s own funds in a client trust account for the sole purpose of paying bank service charges on that account, but only in an amount necessary for that purpose” was added. It was moved and seconded to approve Rule 1.15 as presented today. The motion was approved.

She reported that the change to the comments in Rule 1.16, adds the language stating that a lawyer may retain items for which the attorney has paid out of pocket and for which the lawyer has not been reimbursed when terminating representation. It was moved and seconded to approve Rule 1.16 as presented today. The motion was approved.

B. Pro Se Implementation Committee

Lori Levine provided an update on the work of the Pro Se Commission. She offered a brief historical overview of the Pro Se Commission efforts, stating that a Joint Commission on Pro Se Litigation in family law matters was first established by the Supreme Court of Missouri and The Missouri Bar when Judge Limbaugh served as chief justice. The Joint Commission concluded its work producing a report containing nine recommendations to the Court and the Bar. The report and the recommendations were approved by the Court. The Board of Governors approved them subject to a feasibility study to establish who would be responsible for implementing and funding the recommendations. The feasibility committee concluded that in most cases, the Court would have the responsibility of implementing the recommendations. In 2005, the Supreme Court in cooperation with The Missouri Bar established a Pro Se Implementation Commission. Ms. Levine reported that the Commission intends to begin implementing a pro se program on January 1, 2007. The plan will provide resources delivered via the Internet, and by other means, that include a required education component about the risks and responsibilities of proceeding without a lawyer and about the court system, court approved forms for use by the pro se litigant, expanded efforts to offer pro bono legal alternatives, revised Supreme Court rules designed to help lawyers confidently offer unbundled legal services and resource and education for judges and court clerks to help them more efficiently provide access to justice in the court system. She reported that members of the Implementation Commission would be holding informational sessions on Thursday and Friday of the Annual Meeting and invited those interested to stop by for a more in-depth presentation about the efforts.

C. Unbundled Legal Services Committee

Mr. Alan Gallas reported that he was appointed by Mr. Copeland to chair a committee to look at the issue of unbundled legal services and its implementation in Missouri. He listed the members of the committee, pointing out that several members were also on the Supreme Court’s Pro Se Implementation Commission and also included the state’s Ethics Counsel and a representative from the Bar Plan. He reported that his committee has met and specifically considered (1) whether lawyers can provide unbundled legal services, (2) should lawyers provide unbundled legal services, and if so, (3) how lawyers can provide unbundled services in an ethical and professional manner, protecting both the litigants and lawyers. He reported that members of the Unbundled Committee are working with the Pro Se Commission on proposed rule changes. He explained that his committee anticipates providing a written report to the Board of Governors in November.

D. Gender and Justice Committee

Ms. Jennifer Joyce reported that a draft version of the Gender & Justice survey, focusing on gender-related issues and attitudes in the legal system, has been completed. The survey has been circulated for review and comment, and a final draft is anticipated for review by the Board of Governors at the November meeting. She reported that there are three versions – one for attorneys, one for judges and one for court personnel. The committee is hoping to distribute the survey within the next six months, but the timing for implementation may need to be adjusted based on coordination with the professor who is working on the project.

E. Unauthorized Practice of Law Committee

Mr. Tom Casey reported that the committee will be meeting on Friday morning, and he anticipates having a report for board consideration at the November meeting.

6. Officers Report:

A. Executive Director’s Report

Mr. Keith Birkes reminded everyone that information was provided in the meeting materials regarding proposed changes in the Bylaws and the Policy Statement Regarding Legislative Procedures and the changes will be on the agenda for action at the November meeting. He encouraged board members to review the proposal and contact him if there are any questions. He also provided a brief review of the schedule of programming, events and activities of the Annual Meeting.

B. Vice-President’s Report

Mr. Charlie Harris reported that contracts have been finalized to hold the Mid-Year Meeting in the Bahamas in January 2008.

C. President-Elect’s Report

(1) Civic Education Initiatives

Mr. Ron Baird reported that the first of two Civics Legal Education programs took place on Constitution Day, September 18. Two interactive programs, featuring Professor Michael Middleton, Judge Ray Price and Judge Mary Rhodes Russell, were broadcast to 45 schools throughout the state using the technological facilities of the Missouri School Boards Association. He reported that a similar program is being planned for Bill of Rights Day in December. He reported that the Civic Legal Education Committee is considering ways to utilize a celebrity to help deliver its messages to students throughout the state, and asked board members to contact him with suggestions. He also encouraged members of the Board to participate in civic education initiatives.

(2) Online Legal Research

Mr. Baird reported that the Online Legal Research Committee will likely have a recommendation on a vendor/provider at the meeting in January. He explained that both providers under consideration – Casemaker and Fastcase – have been very competitive during negotiations, offering more and more favorable contract options and price considerations. The committee will be reviewing new programs being launched by Casemaker in October and then will make a decision and formulate a recommendation. He indicated that it is likely that the Bar will still be able to make the online legal research available to members in the early or middle part of next year.

D. President’s Report

(1) Policy on the Use of The Missouri Bar E-Mail and Address by Members of the Missouri Bar Board of Governors

Mr. Copeland called attention to a proposed policy regarding the use of The Missouri Bar email and addresses by members of the Board of Governors. He indicated that the policy was intended to balance the need for Board members to communicate with their constituencies and the desire of Missouri Bar members to not receive unnecessary communication, electronically or by mail An amendment was made to add “utilizing The Missouri Bar list” to the first sentence in the second paragraph so it would read: “Should a member of the Board of Governors of The Missouri Bar determine that they need to communicate with their constituents utilizing The Missouri Bar list.” A similar addition would be made to the second to last sentence in the same paragraph, so it would read: “A copy of the communication to be sent utilizing The Missouri Bar list . . .” It was moved and seconded that the policy be adopted as amended. The motion was approved.

(2) Amendment 7 (HJR 55)

Mr. Copeland updated the Board on the current status of the previously approved allocation of up to $25,000 for polling/focus group studies regarding Amendment 7 (HJR 55). The funds had been approved following a special meeting of the Board of Governors in June. He reported that the focus group studies will not be conducted.

(3) Review of the Judicial Article

Mr. Copeland reported that a subcommittee of the Board of Governors to review the Judicial Assessment will be appointed after officers meet with the Supreme Court and clarify the expectations of such a review. He reported the subcommittee will report and discuss its findings with the full Board of Governors at a future meeting. .

(4) Review of 2005-06 Initiatives

Mr. Copeland provided a review on the status of the 2005-06 initiatives which included efforts to address the judicial compensation issue, resulting in HJR 55; the Non-Partisan Court Plan; the Judicial Assessment Study; challenging a legislative effort to change venue rules for judicial impeachments; continued relationship building with members of the Legislature; efforts to build relationships with minority, local and specialty bars; successful efforts to increase funding for salary increases in the Public Defender System; the continuing effort to solve the crisis in the Public Defender System; efforts to finalize the online legal research package as a member benefit; the completion of the McBride Commission multidisciplinary manual on mental and developmental disabilities; efforts in the area of unbundled legal services; and efforts to address the unauthorized practice of law.

7. Other Business

A. Acknowledgment of Retiring Board Members

Mr. Copeland presented plaques to Ms. Sherrie Doctorian and Messrs. Alok K. Srivastava, Chad A. Gaddie, Newt C. Brill, Joe C. Blanton, Jr., George E. Kapke, Joe B. Whisler, and acknowledged plaques for Karen R. McCarthy, and Sylvester James, Jr., who were not in attendance, honoring the retiring Board members for their service on the Board of Governors.

B. Recognition of Mr. Copeland

Mr. Baird presented Mr. Copeland with a gift from members of the Board of Governors honoring him for his year of service as President.

There being no further business, the meeting was adjourned.

Respectfully submitted,

Keith A. Birkes, Secretary