Board Minutes - September 26, 2007

University Plaza, Springfield

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


William R. Bay

Erik Bergmanis

Suzanne B. Bradley

P. John Brady

Hon. Richard Bresnahan

Thomas J. Casey

Dana Tippin Cutler

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

Aaron D. Jones

Hon. John F. Kintz

Thomas M. Lang

William J. Lasley

Max E. Mitchell

Matthew M. Mocherman

Douglass F. Noland

Daniel A. Raniere

John A. Ruth

Allan D. Seidel

Howard A. Shalowitz

Walter R. Simpson

Wallace Squibb

Patrick B. Starke

Lynn Ann Vogel

H.A. Skip Walther

James C. Wirken

Eric J. Wulff

Members by Telephone:

Jennifer M. Joyce

Mark H. Levison

W. Edward Reeves

Also Present:

Millie Aulbur

Catherine Barrie

Lucas Boling

Jim Brady

C. Michelle Coleman

Dale Doerhoff

Hon. Andrew J. Higgins

Kent Hopper

Chris Janku

Susan Jensen

Dan Lehmen

Stephen Murrell

Linda Oligschlaeger

Alan Pratzel

Sara Rittman

Delores Shepherd

Robert Stoeckl

Larry Swall

Hon. Richard Teitelman

Gary Toohey

Jack Wax


1. Minutes:

It was moved and seconded that the minutes of the meetings of the Board of Governors of July 20 and of the Executive Committee of July 19 and August 2 be approved. It was reported that the minutes of July 20 should be corrected to show that Mr. Alan Gallas and Ms. Suzanne Bradley abstained, rather than voted no on the motion related to mandatory participation in IOLTA. The motion to approve the minutes as amended with the correction was approved.

2. Financial Report:

A. Current Financial Report

Mr. Bergmanis reported that the Missouri Bar finances were on schedule with about two-thirds of the year completed. He noted that expenditures are tracking within budget through the third period of the year, and that revenues are tracking ahead of projection. He noted that investment returns are higher than anticipated. No action was necessary.

B. Proposed Dues Increase

Mr. Bergmanis reported that a $47 dues increase had been discussed during the past year or so and during the July meeting. In addition, the membership of The Missouri Bar was notified pursuant to Supreme Court Rule 6.01(j). Comments were received from members and provided to the Board of Governors. It was moved and seconded that a $47 dues increase be approved. Mr. Baird opened the floor to any members of The Missouri Bar in attendance at the meeting who wanted to speak regarding the proposed dues increase. No members responded. The motion passed.

3. Legislation:

Catherine Barrie reported that four 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 2008 session of the Missouri Legislature. She noted that all four proposals had been approved by the Board last year, however, they were not passed in the 2007 session.

A. Basic Civil Legal Services Fund (Delivery of Legal Services Committee)

Mr. Richard Halliburton reported that this proposal changes 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,” amending 537.675.5 RSMo. 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. Uniform Interstate Family Support Act Amendment (Family Law Section)

Mr. Larry Swall reported on proposed legislation to amend 454.850 to 454.997 RSMo., the Uniform Interstate Family Support Act to include amendments of 2001. Mr. Swall noted that the changes are especially important given today’s mobile society. He 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 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.

C. Uniform Child Custody Jurisdiction and Enforcement Act (Family Law Section)

Ms. Susan Jensen 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. She reported that Missouri is now the only state operating under the UCCJA, making it difficult especially in matters related to continuing jurisdiction in child custody issues. She explained that the UCCJEA is more specific, better defines jurisdiction issues in child support and covers areas not previous addressed in the UCCJA. 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. Authorizes AHC to Render Decisions Based on Summary Determination (Environmental & Energy Law Committee)

Mr. John Ruth 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. He noted that the AHC does not believe that it currently has the statutory authority to entertain motions to dismiss and motions for summary determination. 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.

4. Committee Reports:

A. Judicial Evaluation Survey Committee

Dale Doerhoff provided an overview of the Report of the Judicial Evaluation Survey Committee. Mr.Doerhoff gave a historical review of the judicial evaluation survey and its role as a resource to improve the system of accountability for judges by helping to better inform the citizens of Missouri at election time. He noted that then Missouri Supreme Court Chief Justice Michael Wolff called on the Bar to broaden and improve the evaluation system during his State of the Judiciary Address in January 2007.

He briefly delineated the subsequent work of the committee in response to Judge Wolff’s call. He reported that the committee agreed that an effective judicial performance evaluation requires three elements: (1) the collection of information about judicial performance; (2) evaluation of the information; and (3) dissemination of the information and evaluations to the people. He further reported that the committee recommendations included:

(1) Broadening the pool of survey participants to include jurors, litigants and lawyers.

(2) Broadening the methods for dissemination and tabulation of lawyer surveys.

(3) Creating Judicial Performance Evaluation Committees.

(4) Utilizing the Internet for dissemination of results.

He noted that the recommendations include a change in the criteria used to establish a lawyer’s eligibility to evaluate a judge, reconciling two different criteria previously used in the eastern and western parts of the state.

It was noted that the cost to collect, evaluate and disseminate the evaluations should be in the range of $10,000 to $15,000 biennially.

A motion was made and seconded to approve the Report of the Judicial Evaluation Survey Committee. The motion passed. Judges Bresnahan and Kintz abstained.

B. Special Committee on the Make-up of the Board of Governors

Mr. Tom Lang reported that the Special Committee on the Make Up of the Board of Governors has developed a draft rule and policy regarding the election of three additional members to the Board of Governors, who may possess unique experience and knowledge or who represent diverse elements of the bar. He noted that several draft versions have been developed and discussed since the issue was initiated at the May Board meeting. He reported that the committee has attempted to address concerns and needs identified in those discussions as much possible in the draft currently before the Board. It was moved and seconded to approve the draft rule and policy on the make-up of the Board.

Additional discussion resulted. Concerns were raised about the unrepresented categories delineated in the proposed rule, potential procedural difficulties in utilizing a district wide structure for election, whether district elected members could dilute the representation under the current structure, the cost of adding three additional board members, and whether the six year review cycle is too long. Subsequent comments acknowledged that the language is not perfect, but is adequate to move forward to timely address the need. Further comments were made in favor of the proposed rule and policy, drawing on historical context of similar actions taken that provided for and resulted in broader diversity within the YLS and in Missouri’s legal profession; advocating for approval as a policy of inclusion; highlighting the current needs and considering the uncertainty of future needs. The motion passed. Messrs. Wulff, Lasley, Ruth, Starke and Casey voted no.

C. Special Committee on the Public Defender System

Mr. Douglas Copeland provided an update on the issues related to the crisis in the Public Defender System. He reported that efforts to get additional funding for the PD system met with limited success in the 2007 Legislature. He advised that the committee has educated both the House and Senate in the Missouri Legislature as well as the Governor about the problems facing the system, but the problems remain. He reported that $10 million dollars was requested for the system, but the Legislature only provided $1.5 million. He reminded Board members that the Public Defender System is facing a crisis in its ability to respond to the need for legal defense, potentially presenting both a legal and ethical problem. He suggested that the public defenders could find themselves in a position where they cannot handle any more cases. Issues remain about deciding when they have reached that level and the committee is exploring ways to find and pay for an independent group to conduct and review a caseload study that defines the level of overload and need. He noted that the committee is meeting in the next week. No action was required.

D. Young Lawyers Section Council Report

Mr. Aaron Jones reported that the YLS held a regional meeting in Branson in an effort to involve and attract young lawyers from some of the non-metropolitan areas. He noted that President Baird and Judge Lynch attended as well and the meeting turn out was good. He also reminded the Board that the YLS would be having a post-Best of Missouri event during the Annual Meeting at Ophelia’s Tapas and Wine Bar and invited all to attend.

E. Lawyer Advertising

Mr. Daniel Raniere reported on the activities of the Lawyer Advertising Committee, noting that the committee has held a meeting by telephone conference. He further reported that the committee will focus on evaluating whether the new rules are working as intended. Efforts will be made to communicate with OCDC and Missouri’s Ethics Counsel regarding enforcement of the rule, exploring whether the rule in its approved form is clear enough and whether changes should be considered. The group also plans to discuss potential issues involving Yellow page ad disclaimers, whether it would be beneficial to initiate public service announcements dealing with lawyer advertising and other issues focusing on the dignity of the profession

5. Appointments:

A. Current Appointments

(1) Trustees of The Missouri Bar

Mr. Birkes reported that Dana Tippin Cutler’s second term as a Trustee is expiring and she is not eligible for reappointment. He noted that Ms. Cutler recommended the appointment of Carla Fields as her successor. It was moved and seconded that Ms. Fields be appointed. The motion passed.

B. November Appointments

(1) Board of Governors

Mr. Birkes called attention to the three appointments that will be made in November. He noted that no action was needed at this time and informed the Board that additional suggestions for appointments are welcome prior to and at the November meeting.

(2) Client Security Fund

Mr. Steven Coronado’s term on the Client Security Fund Committee is expiring and he is not eligible for reappointment.

(3) Missouri Press-Bar Commission

Ms. Mary B. Schultz’s second term on the Press-Bar Commission is expiring.

(4) Complaint Resolution Committee

Mr. Charles Hickman’s second term on the committee is expiring and he is not eligible for reappointment. Ms. Ruby Bonner and Mr. Allan Garner’s first terms are expiring and each is eligible for reappointment.

6. Officers Report:

A. Executive Director’s Report

Mr. Keith Birkes provided a brief overview of key activities during the Annual Meeting, including the plenary sessions, CLE track programs, social receptions and awards banquet. He commended the Annual Meeting Planning Committee’s work in developing the substantive programming and events planned and encouraged Board members to attend as many programs and functions as possible.

He also reminded Board members about the date for the Fall Committee Meetings – November 16 and encouraged Board members to make travel plans early for the Mid-Year Meeting in January. He called attention to the 2008 Missouri Bar Communication Plan and the preliminary copy of the Bar’s Economic Survey, both provided in Board packets.

B. Vice-President’s Report.

Mr. Tom Burke briefly reported on his activities during the previous six weeks, which included participation as a panelist on the Constitution Day civic education program webcast to Missouri high schools; new lawyer enrollment ceremonies in Jefferson City, attendance at the Judicial Evaluation Committee meeting, media training; and Missouri Bar new board member orientation.

C. President-Elect’s Report.

No report.

D. President’s Report.

(1) The Missouri Non-Partisan Court Plan

Mr. Baird provided a brief review regarding efforts to change the Non- Partisan Court plan, noting that numerous attacks were countered during his term as president. He noted that legislative efforts also focused on areas such as jurisdiction stripping and changes in the impeachment process. He also called attention to the packet containing media coverage generated on the issue during his term. He indicated that additional attacks are anticipated for the next year as well.

Mr. Birkes explained that The Missouri Bar had been involved in the establishment of the Non-Partisan Court Plan and has consistently supported the Plan and the positive role it plays in providing a solid justices system for citizens of Missouri. He reported that good faith suggestions to improve the plan are welcome, but bad faith proposals that would threaten the fair administration of justice in Missouri become concerns for The Missouri Bar. He reiterated that additional proposals to modify the Non-Partisan Court Plan are expected in 2008 and called member’s attention to other groups within the state that appear to share The Missouri Bar’s interest in preserving the Non-Partisan Court Plan and a solid system for the administration of justice. He noted that it is likely that some of these groups will contact or have already contacted members of this Board and the bar asking for individual participation in their efforts. He explained that while these other groups may share a similar interest of preserving a fair system of justice with The Missouri Bar, they may approach the issues from different perspectives. The Missouri Bar is maintaining good communication with all these groups and will do everything possible to coordinate activities.

Mr. Johnston proposed the creation of a special committee that could be capable of providing rapid analysis and responses to proposed legislation attacking the Plan and/or the administration of justice. He noted that the legislation attacking the Non-Partisan Court Plan appeared without much warning in 2007. He suggested that this committee could be modeled after the committee that had been established to monitor, analyze and respond to tort reform legislation. He suggested that committee members could be appointed based on their expertise in the area and would be a resource for the Executive Committee in being able to quickly respond to these types of measures. Mr. Harris indicated that this would be a concept worth exploring.

(2) Civic Education

Mr. Baird called attention to materials and information provided in the packet outlining the many civic education initiatives that were completed during the past year. He specifically noted the Constitution Day programs and the Rule of Law program held in Columbia.

(3) FastCase

Mr. Baird called attention to a status summary report on the newest member benefit, Fastcase online legal research. He noted that it has been online since early summer and reported that efforts continue to get the word out to members. He indicated that the service provides approximately 80-90 percent of the research needs for most lawyers and expects many lawyers will increase use as their contracts with other legal research providers come to an end.

(4) 2007 Annual Meeting

Mr. Baird briefly outlined plans for the meeting, calling attention to the upcoming Best of Missouri reception and home run hitting contest. He encouraged Board members to refer to the meeting program provided in their packets for a review of all the programs and events planned.

(5) Media and PR Updates

Mr. Baird called attention to the media and PR updates included in the meeting packet.

7. Other Business:

A. Acknowledgment of Retiring Board Members

Mr. Baird presented plaques to Douglas A. Copeland, Bruce F. Hilton and John A. Ruth honoring the retiring Board members for their service on the Board of Governors.

B. Recognition of Ron Baird

Mr. Harris presented Mr. Baird with a gift from members of the Board of Governors honoring him for his year of service as President. Mr. Baird also took the opportunity to congratulate Mr. Harris and call the Board’s attention to the significance of the historic election of Charlie Harris as the first person of color to be elected President of The Missouri Bar.

There being no further business, the meeting was adjourned.

Respectfully submitted,


Keith A. Birkes, Secretary