Board Minutes - May 11, 2007

Jefferson City, MO

Members Present:
C. Ronald Baird, President
Charlie J. Harris, Jr., President-Elect
Thomas M. Burke, Vice-President
Douglas A. Copeland, Past President
Keith A. Birkes, Secretary
Erik Bergmanis
Suzanne B. Bradley
P. John Brady
Hon. Richard C. Bresnahan
Thomas J. Casey
Brian Francka
Carol Chazen Friedman
Alan B. Gallas
Mike Greenwell
Richard F. Halliburton
H. Lynn Henry
Edward J. Hershewe
Bruce F. Hilton
Vincent F. Igoe, Jr.
John S. Johnston
Jennifer M. Joyce
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
W. Edward Reeves
John A. Ruth
Allan D. Seidel
Howard A. Shalowitz
Walter R. Simpson
Wallace Squibb
Patrick B. Starke
Lynn Ann Vogel
H.A. Skip Walther
Eric J. Wulff
Present by Phone:
William R. Bay
Dana Tippin Cutler
Aaron D. Jones
James C. Wirken

Also Present:
Millie Aulbur
Catherine Barrie
Kent Hopper
James Brady
Chris Janku
Dan Lehmen
Lori Levine
Hon. Gary Lynch
Stephen Murrell
Linda Oligschlaeger
Alan Pratzel
Delores Shepherd
Robert Stoeckl
Gary Toohey
Jack Wax

1. Minutes:

It was moved and seconded that the minutes of the meeting of the Board of Governors of January 19 and of the Executive Committee meetings of February 5, February 26, March 13, April 6 and April 27 be approved. The motion was approved.

2. Finance Committee Report:

Mr. Erik Bergmanis reported that The Missouri Bar remains in good financial shape. He reported that both the Finance Committee and later the Executive Committee met to discuss an anticipated dues increase needed to adequately support operations in the future. He reported that an increase in the range of $45 to $48 annually is anticipated. He noted that OCDC is also expected to request a $32 increase. He noted that even with such an increase Missouri Bar dues would remain among the lowest in the country and efforts will be made to communicate this to the membership prior to the increase taking effect. He reported that a final recommendation will be presented for approval at the July meeting of the board. No action was requested.

Mr. Bergmanis proposed a revision to the policy regarding the reimbursement of Missouri Bar delegates to the ABA. It was moved and seconded that The Missouri Bar reimburse former Missouri Bar President Charlie Weiss for the non-reimbursed portion of expenses required to participate in meetings of the ABA Board of Governors. Mr. Bergmanis explained that Mr. Weiss was recently elected to the ABA board and that the non-reimbursed expenses are anticipated to be one night’s lodging and two meals for each meeting.

He also reported that The Missouri Bar experienced a computer crash which required the expenditure of approximately $21,000 to recover and restore data. Approximately $15,000 of the expenditure is expected to be covered by insurance.

He reported that the Executive Committee reviewed a recommendation to make Missouri’s IOLTA program mandatory and to require that all IOLTA accounts pay comparable interest rates. He noted that such a change could potentially double or triple the amount of interest earned on the accounts, which provides needed funding for Legal Services. He reported that a committee is being formed to study the request and is expected to make a recommendation at the July board meeting. No action was requested.

Mr. Richard Halliburton provided a report of the legal service funding provided by The Missouri Bar in 2006. He noted that the funding, which came from a $20 per attorney allotment from bar dues and pro hac vice fees, accounted for roughly 3.4% of all legal services funding in Missouri. Specifically, the funding allowed LSC to represent approximately 900 clients in 2006; provided matching funds for grants to LSC; and demonstrated tangible efforts by lawyers to help provide assistance to low income citizens of the state. He also noted that this funding becomes even more critical if the Delivery of Legal Services bills before the Legislature are not passed this session.

3. Legislation:

Ms. Catherine Barrie reported that the appropriations bill containing the increase in judicial compensation was truly agreed and finally passed. She also reported that the bar-drafted bill making changes to the MUTC passed. She expressed concerns about the legislation to repeal the expiration date on the Basic Legal Services Fund, explaining that the measure has been combined with a controversial measure related to the taking of depositions by non-certified court reporters.

She further reported that six measures were introduced during the session that could be considered attacks on the judiciary. Two of the measures have made progress. HJR 1, which would restrict state court jurisdiction in areas of taxing, spending and budgeting, passed the House and is pending on the Senate calendar. HJR 31, which would repeal the nonpartisan court plan, is expected to go on the House calendar but is not expected to come up for debate.

Ms. Barrie indicated that the bill drafted by the Environmental and Energy Law Committee authorizing the Administrative Hearing Commission to render decisions on summary judgments was voted do pass in the Senate and placed on the informal calendar. She reported that only one of the three Family Law drafted bills has a possibility of passing, noting that the Uniform Child Custody Jurisdiction and Enforcement Act has been added to an omnibus judicial bill. The Property Law bar-drafted bill is facing objections and technical issues may hamper progress of the bill designed to change the tort victims compensation fund.

In response to a question, Ms. Barrie indicated that she was not aware of a bill that would increase court filing fees to fund Family Law Commissioners, but would check into whether a proposed amendment on this subject may have been drafted.

4. Comments by New Chief Disciplinary Counsel:

Chief Disciplinary Counsel Alan Pratzel addressed remarks to the Board and expressed his interest in working with the Board on disciplinary issues. He recognized the efforts of Sam Phillips to develop a strong relationship with The Missouri Bar and expressed his desire to build on those efforts.

5. Committee Reports:

A. Lawyer to Lawyer Dispute Resolution Committee

Judge Gary Lynch presented a proposed change to Supreme Court Rule 5.10, approved by the committee during its morning meeting. The new rule would establish a voluntary lawyer to lawyer dispute resolution program. The program would address two types of disputes: (1) those that involve money and property from incidents such as firm break ups or office sharing issues and (2) the harder issues of “bad blood” between two lawyers, which can permeate every case between the lawyers. It was noted that the program and rule as proposed mainly focuses on issues that arise out of the first type of dispute and guidelines pertaining to the second type of dispute are still under development. Under the proposed rule, any lawyer or OCDC could refer a dispute to the program, but all parties must voluntarily agree to participate.

He further reported that the committee did not feel it was in a position to address whether it would be possible to make program participation mandatory at this time. There are plans for the committee to consider this issue. However, it is anticipated that it will take approximately one year to study, consider and, if appropriate, formulate recommendations for a mandatory program. He also indicated that pending cases would not be excluded from the voluntary program being proposed and he emphasized that this program is not intended to be a substitute method for dealing with ethics violation.

Judge Lynch requested that the board consider the proposed rule at the July or another future meeting. He also asked board member to contact him with any questions they may have in the meantime.

B. Special Committee on Unbundled Legal Services

Mr. Alan Gallas reported that the official report of the Unbundled Legal Services Committee was distributed to the Board at today’s meeting. He noted that the final report does not contain the phrase “unbundled legal services,” explaining that the committee concluded that the phrase is not descriptive of the issue. Instead, the phrase used to describe the issue is “limited scope representation.”

He provided a brief overview about why the committee was appointed, its relationship with the Pro Se Commission and the committee’s charge. He reported that the committee arose at the request of then President of The Missouri Bar Doug Copeland. At least one reason for the appointment of the committee stemmed from a recommendation of the Pro Se Commission, which identified a need to encourage unbundled legal services to address a perception among many individuals, and a reality of some, that they cannot afford to hire a lawyer in their divorce cases. He noted that this, however, was not the charge of his committee. The charge for the Unbundled Legal Services Committee was to look at the concept of limited scope representation across the board and bring recommendations back to the Board of Governors.

He indicated that the composition of the committee did contain a heavy influence in the domestic relations area, but also represented expertise in ethics, malpractice, the pro se commission, and the courts. He reported that the committee reached the conclusion that the concept of lawyers providing limited scope representation is valuable to our citizenry; it is good for lawyers; and it provides a service to the bench. He noted that the committee, in conjunction with the Pro Se Commission has recommended changes to several Supreme Court rules to better regulate the practice and indicated that these proposed rule changes are included in the report. These rule changes include language that would prohibit ghostwriting and they contain a sample limited scope representation agreement.

He further reported that an article on limited scope representation in the Missouri Bar Journal and the dissemination of forms for dissolution of marriage in Cooper County combined to create an uproar on the solo and small firm Internet listserve. He indicated that there has been a tendency to throw both concepts together, even though they are two separate issues. He announced that there will be a lengthy program at the upcoming Solo and Small Firm Conference in June, featuring an in depth discussion on limited scope representation and Court Operating Rule 25 to hear input on these issues from members of the Solo and Small Firm Committee.

Mr. Gallas recommended that the Board defer action with respect to his committee’s report until the July board meeting, giving the Board an opportunity to read and thoroughly review the findings and recommendations of the committee and allowing an opportunity for the committee to receive input from the Solo and Small Firm Conference.

C. Executive Committee Proposal to Add Three Seats to Board

Mr. Ronald Baird reported that the Executive Committee is recommending for the Board of Governors’ consideration a proposed change to Supreme Court Rule 7.03 and a Board of Governors’ policy that would allow the Board of Governors to elect three additional members to the Board from groups that are under represented on the Board. Under the proposal as drafted, the Board would have complete discretion as to what groups would be considered as under represented.

During a lengthy discussion that focused on the policy language, the procedure being followed for this proposal, the impact of the proposed policy and rule, alternative approaches to address this issue, the value of such a policy, a motion was made and seconded to table the discussion. The motion failed.

After additional discussion regarding the pros and cons of the proposed rule and policy, a motion was made and seconded that a committee be appointed to study the issue of adding three additional members to the Board and that committee should report to the Board at the July meeting. The motion passed.

D. Supreme Court of Missouri Joint Pro Se Implementation Commission

Ms. Lori Levine provided a report on the work of the Supreme Court Pro Se Implementation Commission. She provided a brief chronological review of the work and recommendations of the initial commission, the findings regarding responsibility, cost and authority by a subsequent feasibility committee and the efforts of the current implementation commission. She referenced two previous reports to the Board of Governors.

She noted that the nine recommendations of the initial commission were approved in 2003 by the Supreme Court of Missouri and approved by the Board of Governors contingent upon a feasibility study establishing responsibility, authority and cost. She reviewed the conclusions of the feasibility study, which indicated that the bar shared responsibility to cooperate in developing and delivering educational programs outlining the risks and responsibilities pro se litigants would be accepting by proceeding without legal counsel; cooperating with the Court to strengthen alliances with the bar to expand the lawyer referral services and encouraging alternative approaches for the delivery of legal services such as unbundled legal services; cooperate in efforts to expand pro bono services of lawyers; and cooperate in helping to develop standardized forms for use by pro se litigants.

She noted that implementation efforts are underway and outlined publicity that pertained to the work of the commission, including multiple articles in Lawyers Weekly, regular updates at every Family Law Section meeting and at the Annual Family Law Conference.

Ms. Levine indicated that efforts to launch a website with pro se resources developed by the implementation committee have been put on pause to allow comment from the solo and small firm community. She reported that some members of the Solo and Small Firm Committee recently reported that they were unaware of the commission efforts. A panel program has been scheduled for the Solo and Small Firm Conference to further discuss issues related to limited scope representation and COR 25. She also indicated that board members may have heard from solo and small firm lawyers in their district.

She further reported that the efforts of the commission are a “work in progress.” And she reported that an article was appearing in ESQ this week to further provide factual information to those expressing opposition and provide an opportunity for comment.

Several members of the Board indicated that they have heard from lawyers and judges in their district, including some bar associations (Clay, Platte and Cass) and, in those cases, all have expressed opposition to the implementation efforts. Other board members indicated that they have not received lawyer comments in opposition in their districts – St. Louis County and Greene County. It was noted that opposition has come from the western side of the state as well as rural areas in the southern and northeastern areas of the state. It was noted that opposition included the suspension of a pro se educational program by the 16th judicial circuit.

Mr. Halliburton indicated that the Delivery of Legal Services Committee supports this effort, noting that members of that committee from both urban and rural areas are particularly aware of limitations that Legal Aid faces when addressing the family law issues of the low income citizens and how many people are turned away from LSC.

Ms. Levine indicated that no action is being requested by the board until after the Solo and Small Firm Conference program has taken place and provided an opportunity to hear comments and act accordingly.

E. Special Committee on the Public Defender System

Mr. Doug Copeland provided a report on efforts to stem the crisis affecting the State Public Defender System. He reviewed the efforts initiated in 2006, which focused first on studying the issues and verifying a crisis in the system and then working to increase salaries for public defenders. That effort produced a $2 million dollar increase in the Public Defender budget for salaries. He noted that even with the additional $2 million, Missouri has one of the lowest levels of per capita spending for criminal defense in the U. S.

He reported that addressing the Public Defender caseload crisis was the focus for this session, noting that the current caseload of 300 cases per year far exceeds the national and Missouri standards of 225 and 235, respectively. He reported that the governor and legislature espouse a statewide policy against establishing new FTEs, so the solutions focused on contracting cases to the private bar and reclassification/decriminalization of offenses, so they do not require a public defender. The task force identified a need for $10 million to fund contracting cases. However, the legislature provided only $1.15 million in funding. Measures to reclassify offenses were introduced, but as of this meeting nothing has passed. He noted that the task force would meet again after the session to assess future action.

F. Solo and Small Firm Committee

Ms. Carol Chazen Friedman reported that the Solo and Small Firm Committee has an interest in exploring how inactive members can be involved in that committee and on the Internet. However, this will have to be taken up by the Finance Committee. No action was requested.

6. Appointments:

A. Current Appointments

(1) Fee Dispute Resolution Committee

Mr. Keith Birkes reported that the Executive Committee recommends that Dr. Lois Sheffield of Springfield be appointed to fill the lay vacancy on this committee and Jamie Larimore of Cape Girardeau be appointed to fill the lawyer vacancy. It was moved and seconded to approve the recommendations of the Executive Committee. The motion was approved.

(2) ABA Delegates

It was moved and seconded to reappoint Ms. Teresa Levings for a second term as an ABA delegate. The motion was approved. Mr. Birkes reported that the YLS council will designate their appointment at a meeting later this month. He also reported that Mr. Tippin’s term is expiring and the Executive Committee does not have a recommendation for a replacement at this time. It was moved and seconded to table the appointment of the third ABA delegate until the July meeting. The motion was approved.

B. July Appointments

(1) Alcoholism Intervention Committee

Mr. Ronald Baird reported that a recommendation will be provided for an appointment to the Alcoholism Intervention Committee in July.

7. Officers Report:

A. Executive Director’s Report

(1) Upcoming Meetings

Mr. Keith Birkes reported that reservations have been made for all board members to attend the July board meeting at Big Cedar Lodge, the Annual Meeting in Springfield and the Mid-Year Meeting in the Bahamas. He asked board members to let him know as soon as possible if they will not be at any of those meetings, particularly the meeting in the Bahamas. He reminded board members that passports are required for travel to the Bahamas and that it is currently taking months to obtain a passport. He reported that all board members who have been on the board for more than one year will have rooms in Falls Lodge for the July board meeting at Big Cedar. Newer board members will be in Valley View.

(2) Renew Oath of Admission

Mr. Keith Birkes reported on a suggestion made by Mr. Casey to identify ways that members of The Missouri Bar would be able to renew their oath of admission. Mr. Birkes indicated that opportunities to renew the oath will be brought to the attention of members in a number of ways, including providing copies of the oath in the dues statement, in ESQ. and arranging to recite the oath at the Opening Luncheon of the Annual Meeting.

B. Vice-President’s Report

(1) Location for 2009 Missouri Bar Mid-Year Meeting

Mr. Thomas Burke reported that the location for the 2009 Mid-Year Meeting is still under consideration, and he will provide a progress report at the July meeting.

C. President-Elect’s Report

(1) 2008 Mid-Year Meeting

Mr. Charlie Harris reiterated the need to apply for a passport early. He reiterated that it is taking several months to receive a passport and indicating that efforts to expedite the process involve additional and potentially significant cost.

D. President’s Report

(1) Judicial Evaluation Survey Commission

Mr. Ronald Baird reported that the activity of the Judicial Evaluation Survey Commission is contained in the meeting materials, noting that the commission has met and is anticipating a report in September.

(2) Online Legal Research

Mr. Baird referred to his presentation at the Spring Committee meeting luncheon in regards to the status of the Fastcase legal research initiative, reporting that it is on schedule for a launch on June 1.

(3) Springfield Annual Meeting

Mr. Baird reported that the Annual Meeting in Springfield is coming together very well and offers a wide variety of excellent events and activities. He noted that the “Best of Missouri” is booked at Hammonds Field and will feature the reception as well as the opportunity to participate in games, such as a home run hitting contest. He noted that a very good line-up of CLE sessions have been developed and he anticipates an excellent meeting.

There being no further business, the meeting was adjourned.

Respectfully submitted,

Keith A. Birkes, Secretary