Board Minutes - September 17, 2008

Westin Crown Center Hotel, Kansas City

Members Present:
Charlie J. Harris, Jr., President
Thomas M. Burke, President-Elect
H.A. Skip Walther, Vice-President
C. Ronald Baird, Past President
Keith A. Birkes, Secretary

William R. Bay
Erik Bergmanis
Suzanne B. Bradley
P. John Brady
Hon. Richard Bresnahan
Thomas J. Casey
Mark W. Comley
Dana Tippin Cutler
Brian Francka
Carol Chazen Friedman
Virginia L. Fry
Alan B. Gallas
Tracy H. Gilroy
Mike Greenwell
Richard F. Halliburton
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
Karen King Mitchell
Matthew M. Mocherman
Douglass F. Noland
Daniel A. Raniere
W. Edward Reeves
Deanna K. Scott
Allan D. Seidel
Howard A. Shalowitz
Reuben Shelton
Walter R. Simpson
Wallace Squibb
Patrick B. Starke
Lynn Ann Vogel
Eric J. Wulff
Members by Telephone:
Max E. Mitchell

Members Absent:
H. Lynn Henry
James C. Wirken
Also Present:
Millie Aulbur
Catherine Barrie
Lucas Boling
Douglas Copeland
Dale Doerhoff
Kent Hopper
Chris Janku
Dan Lehmen
Linda Oligschlaeger
Alexa Pearson
Delores Shepherd
Wendell Sherk
Robert Stoeckl
Larry Swall
Mavis Thompson
Hon. Richard Teitelman
Gary Toohey
Jack Wax
Joe Whisler

1. Welcome and Introduction of New Board Members
Mr. Harris recognized the newly elected board members. He also introduced the
members of the Leadership Academy who were in attendance.
2. Minutes:
It was moved and seconded that the minutes of the meetings of the Board of Governors of July 18 and of the Executive Committee meetings of July 17, August 20 and August 25 be approved. The motion was approved.
3. 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 received to date exceeded 90 percent. No action was necessary.
B. Flood Claim at Missouri Bar Headquarters
Mr. Bergmanis reported on a flood that occurred in the elevator shaft at the Missouri Bar headquarters around the Fourth of July. The damages were slightly more than $10,000. An insurance claim was approved for $10,000.
C. Annual Audit Proposal and Firm Selection
Mr. Bergmanis reported that the Finance Committee explored putting the annual audit out for competitive bid. He reported that only two firms in Jefferson City were in a position to perform the audit. He noted that one of the firms would have a potential conflict and the other is the firm that currently performs the audit, William Keepers. As a result, bids would have to come from firms outside the Jefferson City area, resulting in higher cost.
He noted that William Keepers has been doing the audit for a number of years and that they have submitted a five-year proposal to perform the audit, which includes a four percent increase. He reported that the Finance Committee considers the William Keepers proposal reasonable and recommends accepting this contract, rather than seek other bids.
D. Young Lawyers Section Budget
Mr. Bergmanis reported that the YLS has made a request to amend their budget to reallocate $7,500 out of their newsletter, bar enrollment and regional meeting budget categories into their ABA travel budget. This action is requested to cover overages incurred in the travel category. This would be a reallocation of the funds. It would not be adding funds to their overall budget. Mr. Bergmanis reported that the Finance Committee is in favor of granting their request, but also recommended that YLS leadership keep tighter controls on budgeted expenditures in the future. The original amount of travel expenses,
not the increased amount, will be used for preparing the 2009 budget.
E. Management Software Package
Mr. Bergmanis reported that $200,000 had been allocated for the development of the Bar’s new management software package. However, the work being performed will actually cost approximately $250,000. He noted that the vendor performing this work is currently completing the customization that will allow for online dues payment, and it is anticipated that consideration will be given to change vendors when this project is completed.
It was moved and seconded that the Board accept the Finance Committee recommendations to continue using William Keepers for the annual audit and allow the Young Lawyers Section to amend their budget as described. The motion was approved.
4. Legislation:
Catherine Barrie reported that five 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 2009 session of the Missouri Legislature. She noted that a sixth proposal on the Right of Sepulcher is included in the packet, but would not be presented for action until the November meeting of the Board of Governors.
A. Commercial Law Committee
Mr. Wendell Sherk reported that this proposed legislation relates to exemptions under 513.430, RSMo. The measure would modify provisions to correct errors in the 2003 exemption legislation which had the effect of putting some automobiles and mobile homes at risk of attachment by creditors. The legislation would correct a typographical error in the 2003 law, as well as harmonize the sections in question with the rest of the statute and codify the interpretations of the statute by Missouri courts. He indicated that the codification of interpretations by Missouri courts could be important in relation provisions in the 2005 federal bankruptcy reform act. He further reported that the proposed legislation would create a new subsection codifying Missouri’s common law exemption of personal injury claims in bankruptcy actions. He reported that codification is needed because dicta in a 2007 court decision implied that common law personal injury exemptions may not apply in bankruptcy court in Missouri, and the Western District has recently ruled that the common law exemption does not apply in bankruptcy court. 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. Family Law Section
Mr. Larry Swall reported on four legislative proposals from the Family Law Section. He noted that the Family Law Section has been more proactive in terms of proposing legislation over the past few years because of the many problems family law attorneys have been observing and the resulting negative effect these problems have had on families. He noted that the legislation being proposed is intended to address some of these problems.
1. Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA)
Mr. Swall reported that this proposed legislation would amend 452.440 to 452.550 RSMo, adopting the UCCJEA in Missouri. He noted that adoption of the UCCJEA would help courts determine state jurisdiction in child custody proceedings and would be especially helpful regarding issues of exclusive continuing jurisdiction. The proposed legislation would also provide for the communication between the courts to be recorded and the enforcement of custody orders. He noted that Missouri currently has the Uniform Child Custody Jurisdiction Act (UCCJA) and is one of only three states that have not adopted the UCCJEA. 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.
2. Uniform Interstate Family Support Act (UIFSA)
Mr. Swall reported that this proposed legislation would amend 454.850 to 454.997 RSMo., the Uniform Interstate Family Support Act. He noted that Missouri has enacted the UIFSA, but this legislation would pass amendments that would codify existing Missouri case law pertaining to issues such as interstate actions, determining appropriate choice of law, and other basic jurisdiction provisions. 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.
3. Uniform Premarital Agreement Act
Mr. Swall reported that this legislation would provide the first codification of any law regarding premarital agreements in Missouri. He reported that this uniform bill would provide badly needed guidance to attorneys and would provide a huge benefit to lawyers who draft these agreements, as well as for citizens who wish to use them. 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. Use and Disclosure of Social Security Numbers in Domestic Relations Pleadings
Mr. Swall reported that this legislation would repeal 210.841, 452.305, 452.310, 452.312, 452.343, 454.500, 454.905, 454.951 and 455.005 RSMo and enact in lieu thereof eight new sections relating to the use and disclosure of Social Security numbers and the date of birth in certain documents related to domestic relations matters. He reported that the law currently requires that the documents filed under this statute contain the social security numbers and date of birth of the litigants and minor children. He further reported that these documents are considered public record under Missouri law, and the disclosure of this information puts the parties at risk of identity theft. He acknowledged that the Social Security and date of birth information, currently required under the statute, serves an important public policy purpose, including supporting the enforcement of child support and other rulings by the family court. And he explained that the proposed legislation would continue to require this information, but would do so through the use of a family court information sheet that would not be part of the public record.
He reported that the proposed legislation would also require that the clerk of the court redact any Social Security numbers and dates of birth of the litigants and children of a domestic relations matter prior to the release of the document in an otherwise public proceeding. He noted that the current requirement to include this information went into effect in 1998.
Concerns were raised regarding the cost associated with requiring courts to redact this information from current files and the impact that such a fiscal note could have on the chances of the legislation passing. Questions were raised about whether it would be better to file two different bills – one that would remove the current requirement and another that would require courts to redact this information. Discussion also focused on whether the board could support the prospective aspect of the bill, while not taking a position on the retrospective provision.
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 moved and seconded that the proposal be revised into two separate measures, one repealing the current requirement to include this information in public documents and another requiring the redacting of the information contained in files after 1998.
Further concerns were raised about the redacting requirement and it was noted that the information in question is not confined to only one document or part of a file, but is recorded in a variety of different places in each file. Questions were raised about whether OSCA was asked to comment on the redacting issue. It was moved and seconded that in light of the comments and significant concerns expressed, the matter be tabled until the November board meeting to allow for the Family Law Section to give further consideration to the issues discussed and also to allow input from OSCA on the fiscal impact of the component requiring redacting of information. The motion passed.
5. Committee Reports:
A. Judicial Performance Evaluation Committee
Dale Doerhoff provided a report on the Judicial Performance Evaluation program in Missouri. Mr. Doerhoff gave a brief historical review of the judicial evaluation survey. He described the purpose of the evaluation process as a way to improve the system of accountability for judges by helping to better inform the citizens of Missouri at election time. He noted that The Missouri Bar had been involved in some form of judicial evaluation since 1948 with the modern evaluation process going into effect in 1992. He noted that, in 2007, then Missouri Supreme Court Chief Justice Michael Wolff called on the Bar to broaden and improve the evaluation system and the efforts of this committee grew out of that call.
He briefly delineated the subsequent work of the committee in response to Judge Wolff’s call and outlined the key components of the new Judicial Performance Evaluation for 2008. These changes included:
• Establishing the evaluation by court rule – Rule 10
• Setting new evaluation standards
• expanding and enriching evaluation content
• changing committee composition to include an equal number of lawyers and non-lawyers
• Adding juror evaluations
• Providing a due process component for the judges being evaluated
• Broadening methods of dissemination, using the Internet
He noted that the judicial performance evaluations were in place in 19 other states and his committee had an opportunity to review and incorporate best practices when considering ways to improve the process in Missouri.
He indicated that the committee plans to study and evaluate how the 2008 changes worked after the upcoming election and will consider additional changes in the future. The committee anticipates surveying the judges that were evaluated. It will continue to monitor developments in other states. The committee anticipates working with OSCA to develop better data recovery for JPE and will consider incorporating other relevant parties into future evaluations such as litigants, court personnel, law enforcement, and/or court observers.
B. Lawyer Advertising Committee
Mr. Levison provided a brief review of the action taken to date in relation to the lawyer advertising rule changes proposed by the Special Committee on Lawyer Advertising. He reported that the proposed changes were disseminated for general comment from members of the Bar in early August with the comment period scheduled to end on September 1. He further noted that, in the interim period, MATA submitted a request to The Missouri Bar to extend the comment period until October 15. The Executive Committee granted this request.
Mr. Harris reported that prior to this meeting, the Executive Committee received a request from the chairs of two Missouri Bar Committees (Civil Practice and Procedure and Tort Law) that the general comment period be extended so these committees would have an opportunity to discuss the proposed changes with member of their committees at the Fall Committee Meetings, scheduled for November 21. Concerns were raised that extending the comment period until after the November meetings would have the potential effect of delaying any Board action well into the spring or even summer of 2009. An alternative approach suggested that there be no extension of the October 15 deadline for general comment. Instead, the Special Committee on Lawyer Advertising would review all comments received by the deadline, make any revisions deemed necessary, and provide a revised version incorporating general comments into an updated proposal, which any interested committee could review at the Fall Committee Meetings.
Other concerns cited the importance of the proposed rule changes and expressed the need to allow as much time as possible for a general comment period from members of The Missouri Bar and other interested parties.
It was moved and seconded that the recommendation of the Executive Committee be approved, extending the time period for general comment until after the Fall Committee Meetings on November 21. A friendly amendment was made and accepted to extend the general comment period until December 1. The motion was approved with 24 votes in favor and 13 votes against. The following members requested that their “no” votes be recorded: Thomas J. Casey, Brian Francka, Alan B. Gallas, Mike Greenwell, William J. Lasley, Matthew M. Mocherman, Allan D. Seidel, and Max E. Mitchell.
C. Special Committee on the Public Defender System
Mr. Douglas Copeland provided an update on the crisis in the Public Defender System, focusing on the status of a detailed caseload study underway by the Spangenberg Group and on a new rule recently adopted by the Missouri Public Defender Commission.
He reported that an independent caseload study is underway. The status of the study is in progress, but due to the illness of Bob Spangenberg, the report is likely to be delayed until December 2008. This study will focus on analyzing and defining workload issues specific to the Missouri Public Defender System. The purpose is to establish a specific Missouri weighted caseload standard that defines the issues in the field, is adaptable for each field office, and can be applied to future changes in the system. The study is also expected to provide data that can be used to define exactly what the system needs to support funding requests from the Legislature, as well as provide empirical data should litigation arise related to the issue.
He further reported that the Missouri Public Defender Commission has recently adopted a rule (18 CSR 10-4.010) that allows Public Defender district offices to declare when they can no longer handle additional cases because their lawyers cannot meet ethical standards and cannot provide a constitutionally sound defense.
The rule establishes a caseload standard protocol identifying a maximum caseload that any particular office can handle without compromising representation. When an office has reached this level for three consecutive months, a notice will be sent to the presiding judge one month in advance of when they will begin refusing to accept cases. During that one month period, it is anticipated that the Public Defender’s office will get together with the prosecuting attorney and court to decide how they will handle the overage, until the office gets down to a manageable caseload. Mr. Copeland anticipates that plans to handle this issue will vary from circuit to circuit and may include the appointment by the court of private attorneys to handle the excess cases. He noted that several offices have currently reached this maximum caseload. It was noted that appointments are expected in Greene County by October.
Mr. Copeland noted that currently the Public Defender System handles approximately 80 percent of the criminal cases in Missouri courts. The Public Defender System has not had an increase in staffing in eight years and has experienced 100 percent turnover during the past five years. He noted that some additional funding was allocated to the Public Defender System by the Legislature, but Missouri remains 48th or 49th in per capita spending for the Public Defender System in the U.S.
It was also noted that The Missouri Bar had in 2005 developed training materials to assist lawyers who may be appointed in this effort and these materials are still available.
6. Appointments:
A. September Appointments
(1) Trustees of The Missouri Bar
Mr. Birkes reported that Countees Price’s second term as a Trustee is expiring and she is not eligible for reappointment. The Executive Committee recommends the appointment of Fred Drakesmith to fill the position. It was moved and seconded that Mr. Drakesmith be appointed. The motion passed.
B. November Appointments
Mr. Birkes called attention to four committee appointments that will be made in November. He noted that no action was needed at this time and informed the Board that suggestions for appointments are welcome prior to and at the November meeting.
(1) Client Security Fund
Ms. Phebe Ann LaMar’s term on the Client Security Fund Committee is expiring and she is not eligible for reappointment. The other members of the committee are Matthew Devoti of St. Louis; Nancy Gonzalez of Kansas City; Lois Zerrer of Springfield; Scott Robbins of Poplar Bluff and Max Mitchell of Sedalia.
(2) Complaint Resolution Committee
Suzanne B. Bradley’s second term as a member is expiring and she is not eligible for reappointment.
(3) Missouri Press-Bar Commission
Honorable Jerry Venters’ term on the Commission is expiring.
(4) IOLTA Foundation
Mr. John Joines, The Missouri Bar’s non-lawyer appointee to the Foundation, is finishing his first three-year term. He is eligible for reappointment.
7. Officers Report:
A. Executive Director’s Report
Mr. Keith Birkes called attention to The Missouri Bar Communications Plan that has been provided in the meeting packet and encouraged members of the Board to review the plan.
He also called attention to a document provided to Board members entitled Discussion Draft for Consideration by the Judicial Conference and Missouri Bar. This is a “critical issues” summary put together by the staff of the Judicial Conference. It is provided for Board information and there will likely be more discussion of this at the November meeting.
He introduced a new member of The Missouri Bar professional staff, Alexa Pearson. He noted that her duties will include working on legislative issues with Catherine Barrie, as one of the Bar’s two lobbyists; she will also be staffing the Young Lawyers’ Section Council and The Missouri Bar Foundation.
Mr. Birkes reviewed the Annual Meeting programming, including calling attention to the receptions, opening luncheon, CLE programming and the Friday evening awards banquet. He encouraged all Board members to attend the events and functions.
B. Vice-President’s Report
H.A. “Skip” Walther thanked members of the Board for the opportunity to serve as vice-president. He reported that he has not yet selected a location for the 2010 Mid-Year Meeting, but he noted that he is considering Palm Springs and Santa Barbara and welcomes any input from members of the Board.
C. President-Elect’s Report
Tom Burke reminded the Board that the 2009 Mid-Year Meeting will be at South Seas Captiva Island in Florida and noted that he looks forward to serving as president in the coming bar year.
D. President’s Report
Mr. Harris commented on the historical significance of being the first person of color elected as president of The Missouri Bar. He commended the Board for its leadership related to that historic election, as well as the supporting the diversity initiative that resulted in the addition of three new members to the Board. He thanked the Board for having given him the opportunity to lead The Missouri Bar during the previous year, calling it the most rewarding year in his professional career.
8. Other Business
A. Acknowledgment of Retiring Board Members
Mr. Harris offered comments and presented plaques honoring the retiring Board members for their service on the Board of Governors. The following Board members were recognized: C. Ronald Baird, Michael Greenwell, Virginia L. Fry, H. Lynn Henry, Aaron Jones, Thomas Lang, Daniel Raniere, Howard Shalowitz and James C. Wirken.
B. Comments from Mavis Thompson
Mr. Harris recognized Ms. Mavis Thompson, President-Elect of the National Bar Association. Ms. Thompson expressed her personal appreciation to the Board of Governors for their support as she moved into the leadership of the NBA. She will begin serving as President starting in August of 2009.
C. Recognition of Mr. Harris
Mr. Burke presented Mr. Harris with a gift from members of the Board of Governors honoring him for his year of service as President. Mr. Burke also took the opportunity to congratulate Mr. Harris on his leadership and the historic significance of his tenure as president.
There being no further business, the meeting was adjourned.
Respectfully submitted,
Keith A. Birkes, Secretary