Board Minutes - November 16, 2007

Capital Plaza Hotel, Jefferson City, Missouri

Members Present:
Charlie J. Harris, President
Thomas M. Burke., President-Elect
H.A. Skip Walther, Vice-President
C. Ronald Baird, Past President
Keith A. Birkes, Secretary
William R. Bay
Suzanne B. Bradley
P. John Brady
Thomas J. Casey
Mark W. Comley
Dana Tippin Cutler
Brian Francka
Virginia L. Fry
Alan B. Gallas
Tracy H. Gilroy
Mike Greenwell
Richard F. Halliburton
H. Lynn Henry
Edward J. Hershewe
Vincent F. Igoe, Jr.
John S. Johnston
Aaron D. Jones
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
Allan D. Seidel
Howard A. Shalowitz
Walter R. Simpson
Wallace Squibb
Patrick B. Starke
Lynn Ann Vogel
Eric J. Wulff
Members Absent:
Erik Bergmanis
Hon. Richard Bresnahan
Carol Chazen Friedman
James C. Wirken
Also Present:
Millie Aulbur
Catherine Barrie
Lucas Boling
Jim Brady
Kent Hopper
Chris Janku
Dan Lehmen
Stephen Murrell
Linda Oligschlaeger
Delores Shepherd
Robert Stoeckl
Gary Toohey
Jack Wax

1. Minutes:
It was moved and seconded that the minutes of the meetings of the Board of Governors of September 26 and of the Executive Committee of September 26 and October 31 be approved. It was reported that the minutes of September 26 should be corrected to show that Mr. William Lasley voted no on the Missouri Bar dues increase. The motion to approve the minutes as amended with the correction was approved.
2. Legislation:
Catherine Barrie reported that sponsors are being sought for the four bar committee drafted legislative measures previously approved by the Board. No action was required.
3. Committee Reports:
A. Committees Making Reports
(1) Judicial Evaluation Survey Committee
Mr. Doerhoff briefly reviewed the finding and recommendations of the Judicial Evaluation Survey Committee and reported specifically on the recommended methods for officially sanctioning a modern Judicial Performance Evaluation (JPE) program in Missouri.
He noted that JPE programs in other states have been established by court rule and by statute. He reported that the committee recommends establishing a JPE by Supreme Court rule. He stated that the committee concluded that such action is within the scope of the Supreme Court of Missouri’s constitutional authority over the judicial department, citing other examples of where the Court has exercised similar authority under Article 5, including establishing The Missouri Bar, the Board of Governors and the Board of Law Examiners.
He reported that the committee concluded that a JPE established by court rule would avoid the potential of politicizing the process and/or results. He further reported that the committee report recommends that the Supreme Court add the JPE in Rule 10.
Mr. Doerhoff also reported that in the absence of a rule enacted by the Supreme Court, The Missouri Bar under its mission to support the administration of justice could conduct a JPE on its own. However, he cautioned that action by The Missouri Bar without the benefit of a Supreme Court rule would continue to leave a vacuum of authority which could be superseded by statute.
(2) Special Committee on Public Defender System
Ms. Barrie reported that the Missouri State Public Defender System conducted an internal caseload study of the system and adopted a new Agency Rule and Caseload Crisis Protocol on November 2. The protocol establishes a procedure for determining the maximum weighted caseload each district office can reasonably expect to handle and the rule authorizes the MSPD Director to certify a district office “of limited availability” when the cases assigned to that district office exceed the maximum case load standard. The MSPD anticipates working with the court and state’s attorney on how best to handle criminal cases in districts that have reached the maximum caseload levels; options may nclude the assignment of cases to the private bar.
(3) Client Security Fund Committee
Mr. Janku reported that earlier this year, the Board approved the payment of 16 claims for $15,936 and the denial of 13 claims. The committee subsequently met in October and now recommends payment
of 21 additional claims totaling $173,726, the denial of 5 claims and the dismissal of 5 claims.
He reported that the balance of the fund as of September 30 was approximately $302,000. The fund received approximately $10,000 in restitution and interest subsequent to September 30, so the current balance exceeds $315,000.
Mr. Janku also reported that additional claims have arisen and will be investigated in December and additional payment and denial recommendations will be submitted to the Board of Governors in January.
He reviewed that there is a cap of $50,000 in place for each claim, that the fund does not provide payment on malpractice claims and a subrogation agreement is executed prior to the payment of claims. It was moved and seconded that the recommendation be approved. The motion was approved.
(4) Delivery of Legal Services Committee
Mr. Halliburton reported that the Delivery of Legal Services Committee anticipates drafting two new rules for Board approval in January or May. One rule, modeled after similar rules enacted in New Hampshire and Colorado, would allow a limited certificate of admission for retired and inactive attorneys who do pro bono work for Legal Services programs.
Another rule will be drafted to effectively prohibit paying garnishments out of bank accounts which consist of exempt social security funds. This action can be accomplished now by the filing of an affidavit. However, the rule that will be drafted would protect these funds without the need for an affidavit.
(5) Eminent Domain Committee
Ms. Vogel reported that the Eminent Domain Committee expressed concerns about proposed legislation that includes a MAI instruction related to fair market value in the statute. Concerns were raised that the instruction contained in the legislation is much more complicated and may present a conflict with the current MAI instruction approved by the Supreme Court of Missouri. It was recommended that the Eminent Domain Committee analyze the issue and formulate a position and proposed course of action and communicate that to the Executive Committee as soon as possible for consideration.
(6) Lawyer Referral Service Committee
Mr. Starke reported on a LRS Committee discussion questioning whether the LawyerSearch function on the bar’s website exposed the bar to liability, and he asked that this issue be investigated. Mr. Shalowitz noted that the LRS would also look into including information about the lawyer referral services on each court summons in St. Louis.
(7) Committee on Minority Issues
Ms. Cutler reported that the Committee on Minority Issues is interested in changing its name to reflect the more proactive nature of the committee and requested guidance on the procedure for doing so. Mr. Birkes explained that the committee should identify and approve a new name for recommendation to and consideration of the Executive Committee.
(8) Gender and Justice Committee
Ms. Joyce reported that the Gender and Justice Committee has completed the development of the membership survey, previously approved by the Board of Governors. She further reported that the survey will be e-mailed to the membership in January.
(9) Acknowledgement of Leadership Academy
Mr. Harris acknowledged members of the Leadership Academy in attendance at the meeting.
4. Appointments:
A. Current Appointments:
(1) Client Security Fund Committee
Mr. Birkes reported that Steven Coronado’s term is expiring and he is not eligible for reappointment. It was moved and seconded that Nancy Morales Gonzalez be appointed. The motion was approved
(2) Press-Bar Commission
Mr. Birkes reported that Mary B. Shultz’s second term is expiring and she is not eligible for reappointment. It was moved and seconded that Mark Sableman be appointed. The motion was approved
(3) Complaint Resolution Committee
Mr. Birkes reported that three terms are expiring on this committee. Ms. Ruby Bonner and Mr. Allan Garner’s first terms are expiring and they are both eligible for reappointment. It was moved and seconded that both be reappointed. The motion was approved. Mr. Charles Hickman’s second term is expiring and he is not eligible for reappointment. It was moved and seconded that Mr. C. J. Larkin be appointed. The motion was approved.
B. January Appointments:
Mr. Birkes reported that there will be an appointment for the new Lawyer-to-Lawyer Dispute Resolution Committee to consider at the January meeting.
5. Finances:
Mr. Birkes reported that the Finance Committee and Executive Committee jointly recommend the adoption of the 2008 budget. He reported that the budget includes an increase to cover the inflationary cost of continuing those activities that The Missouri Bar has carried on in the past year. There is no increase in the expenditures for the current Board of Governors, funding will increase for the three new Board members if approved by the Board. The stipend for the Board for the Mid-Year Seminar will remain the same as it was in 2007, $1,100.
A significant increase of $500,000 was recommended for the public information budget. Mr. Birkes indicated that the increase is earmarked for an enhanced public information campaign expanding efforts to inform and educate the public about Missouri’s justice system.
He reported that the budget also includes an adjustment to staff salaries. Following an
executive session, the Board discussed the expanded plans for the public information program. It was noted that the efforts will be coordinated with current public information initiatives. It was noted that the Executive Committee will approve expenditures of these funds on behalf of the Board if circumstances require immediate action. Otherwise, expenditures will come before the Board for approval. It was moved and seconded that the
2008 budget be approved. The motion was approved. Mr. William Lasley abstained, requesting that the Board have more time to study the $500,000 increase.
6. Officers Report:
A. Executive Director’s Report
(1) New Members on the Board of Governors
Mr. Birkes reported that the Supreme Court of Missouri adopted the rule to elect three new members to the Board as recommended by the Board of Governors. Under the rule, the Board of Governors has full discretion in conducting the election of these members. He reported that the Executive Committee recommends that efforts begin immediately through ESQ and other bar communications to advertise the new Board positions and the procedures for submitting nominating petitions to Missouri Bar members. The recommended procedure would set a deadline of January 10 for nominating petitions. Board members would hold three caucuses during the January Board meeting to select two nominees from each district. An electronic election would be completed by March 1. It was also recommended that the initial term be for one year and seven months, with subsequent terms of two years. It was moved and seconded to approve the election procedures and timetable recommended by the Executive Committee. The motion was approved.
(2) Ownership of Bar Plan Name
Mr. Birkes reported that the Executive Committee has been in discussions with The Bar Plan insurance company, regarding the ownership of the company’s name. He explained that The Missouri Bar originally created the Bar Plan decades ago and although the company became an independent entity, the Bar still owns the name. After extensive discussions the last year’s Executive Committee concluded that The Missouri Bar should assign all rights in the name to the Bar Plan. Intellectual property attorneys were hired to review the situation. The current Executive Committee recommends that The Missouri Bar assign all rights in that name to the Bar Plan. It was moved and seconded to approve the recommendation. The motion was approved.
(3) Future Board Meetings
Mr. Birkes reported that the next board meeting will be held at the Mid- Year Meeting. He noted that advance registrations for the conference were looking good, that the CLE programs are in place, featuring many members of the Board, along with a CLE session presented by Judge Gaitan. He noted that the spring meeting will be May 9 and we should be welcoming three new members to the Board of Governors at that meeting.
B. Vice-President’s Report
Mr. Walther reported that he has had an opportunity to attend bar association meetings in Little Rock and Oklahoma City and has discovered that challenges related to the independence of the judiciary and the lack of public knowledge in this area is not confined to our state, but is a nationwide challenge.
C. President-Elect’s Report
Mr. Burke reported that he is in full support of the public information campaign to inform and educate the public about the justice system and noted that this effort will require the support of all Board members.
D. President’s Report
(1) Election of Three New Members
Mr. Harris encouraged members of the Board of Governors to take a look at the lawyers in their respective appellate judicial districts to identify qualified, energetic people who fit the criteria for the new board seats and talk to those people about submitting nomination materials, so the process of selecting candidates for the upcoming election can begin.
(2) Rapid Response Efforts
Mr. Harris reported that he has put mechanisms in place, so The Missouri Bar can respond more quickly when circumstance require it. He reported that he has appointed a “Keller” committee, named for the seminal case related to the appropriate use of mandatory bar dues. The “blue ribbon” committee is made up of John Johnston, Ann Covington, Professor Douglas Abrams and Professor David Achtenberg. The committee is available to quickly do research and provide counsel to the Executive Committee when necessary.
He also reported that he has created a rapid response committee, available to do research on other issues that may arise during the bar year. He noted that three Board members have committed their time and the time of their firms for this purpose. The committee members are: Wallace Squibb, William Bay and P. John Brady.
(3) Letters to Bar Leaders Urging Support for Justice System
Mr. Harris reported that he has taken actions to encourage broad-based support of Missouri’s justice system. They include sending a letter to the leaders of the other bar associations; co-signing a letter with Chief Justice Laura Stith to all judges in the state; and visiting with judges in Missouri’s Appellate Courts. He reminded everyone that a broad-based coordinated effort in addition to Missouri Bar efforts will be necessary.
(4) 2008 Mid-Year Meeting
Mr. Harris reported that he anticipates an excellent Mid-Year Meeting in January, referring to the summary provided previously by Mr. Birkes.
(5) 2008 Annual Meeting
Mr. Harris reported that Patricia Sexton has been appointed as chair of the 2008 Annual Meeting Planning Committee and he anticipates an outstanding meeting in Kansas City next September.
(6) Media and PR Updates
Mr. Harris called attention to the media and PR updates included in the meeting packet.
7. Other Business:
Mr. Birkes reported that a contract is in place with Mr. Woody Cozad for legislative representation in the 2008 session.
There being no further business, the meeting was adjourned.
Respectfully submitted,
Keith A. Birkes, Secretary