Board Minutes - November 21, 2008

Capital Plaza Hotel, Jefferson City, Missouri

Members present:
Thomas M. Burke, President
H.A. Skip Walther, President-Elect
John S. Johnston, Vice-President
Charlie J. Harris, Jr., Past President
Keith A. Birkes, Secretary

William R. Bay
Erik Bergmanis
Stephen R. Bough
Suzanne B. Bradley
Hon. Richard Bresnahan
Thomas J. Casey
Mark W. Comley
Dana Tippin Cutler
Brian Francka
Carol Chazen Friedman
Alan B. Gallas
Tracy H. Gilroy
John R. Gunn
Richard F. Halliburton
Paul G. Henry
Edward J. Hershewe
Vincent F. Igoe, Jr.
Jennifer M. Joyce
Hon. John F. Kintz
William J. Lasley
Mark H. Levison
Neil F. Maune, Jr.
Karen King Mitchell
Max E. Mitchell
Douglass F. Noland
Megan E. Phillips
Brett W. Roubal
Deanna K. Scott
Allan D. Seidel
Reuben Shelton
Walter R. Simpson
Wallace Squibb
Patrick B. Starke
Hon. David L. Vincent
Lynn Ann Vogel
Raymond E. Williams
Eric J. Wulff

Members absent:
Matthew M. Mocherman
Charlie J.Harris, Jr.

Members present by telephone:
P. John Brady
W. Edward Reeves
Patricia A. Sexton

Also present:
Millie Aulbur
Catherine Barrie
Lucas Boling
Jim Brady
Kent Hopper
Chris Janku
Dan Lehmen
Alexa Pearson
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 17 and of the Executive Committee of October 22 be approved. The motion was approved.
2. Standing Committee Reports:
A. Report of the Civil Practice & Procedure/Tort Law Committee on Joint Meeting on Proposed Lawyer Advertising Rules
Susan Ford Robertson reported on a joint meeting held earlier in the day on the proposed changes to the rules governing lawyer advertising. She expressed appreciation to the Board, on behalf of herself and Danny Thomas, chair of the Tort Law Committee, for extending the public comment period on the proposed rule change, so a joint meeting forum could be arranged at the Fall Committee meetings.
She further reported that the dual purpose of the joint meeting was to disseminate information about the proposed rule changes and provide a forum for lawyers to come forward to make public comments and to be heard.
She reported that the meeting attracted a large audience and produced a lively debate filled with diverse viewpoints. She noted that the meeting also provided a forum to educate members of the Bar about the role of Special Committees such as the one reviewing lawyer advertising and the process used to bring rule changes through the Bar from a special committee, to the Board, and ultimately to the Supreme Court.
She reported that a written report on the meeting will be provided to the Board in the near future.
B. Criminal Law Committee Rewrite of Criminal Code
Jennifer Joyce reported that the Criminal Law Committee has become active under its co-chair leadership structure, noting that one chair is a prosecutor and the other is a public defender. She further reported that the committee has decided to undertake a rewrite of the criminal code. She explained that this initiative is badly needed since it has been 30 years since the last rewrite. She noted that the Missouri Legislature had intended to perform a rewrite of the code, but has instead decided to support the work of this committee. She reported that the committee has representation from the pubic defender, prosecutor, criminal defense and legal academic sectors for the rewrite effort, but needs representation from the criminal bench. She asked for input and suggestions on a criminal law judge to participate in this effort.
C. Delivery of Legal Services Committee
Richard Halliburton reported that the Delivery of Legal Services Committee discussed at length and endorsed two items during its meeting. The committee endorses a change to Rule 90 that would prohibit the garnishment of social security funds in bank accounts. He noted that the committee expects that such a rule change proposal will be coming before the Board this year.
He also reported that the committee endorses a statement submitted to the Board from Missouri’s four legal services programs, which urges the Board and Court to expand the exemptions contained in the proposed change to Rules 4.7- 1, 4.7-2 and 4.7-3, so any requirements proposed for the advertising rules would not apply to not-for-profit legal services programs and other not-for- profit programs providing legal services.
D. Young Lawyers’ Section
John Gunn reported on the activities of three YLS task forces and efforts to expand an ABA/YLS initiative statewide. He reported that the YLS established two new task forces. The first is a “Going Green Task Force,” which will develop “best practices” resource materials for Missouri law firms. He noted that this effort models a similar initiative underway at Lathrop Gage.
He also reported that the YLS established a “Special Needs Advocacy Task Force,” which will work to identify resources for families who have children with special needs and make the information and resources easily accessible on the Internet, including on The Missouri Bar website.
He further reported on an ongoing Public Defender’s Task Force, now in its third year. This task force is working to find ways for young lawyers to provide pro bono service to assist the Public Defender System. He noted that the YLS intends to get involved in an initiative suggested by Chief Justice Stith and requested by the Public Defender System for lawyers to assist with pro bono appeals for indigent citizens.
He also reported that the YLS will work to expand statewide an existing ABA program called “Wills for Heroes.” Under the program young lawyers would provide simple wills, estate plans and durable powers of attorney at no cost for first responders across the state. He noted that Young Lawyers Section within BAMSL has implemented the program in the St. Louis area and provides a model, including forms for use by participating lawyers. He noted that the YLS could use some assistance in identifying funding for laptop computers, which are needed to give lawyers the mobility to provide the service at first responder locations (firehouses, police stations, etc.) across the state.
3. Legislation
Catherine Barrie called attention to the four bar-drafted bills approved by the Board of Governors at the September meeting. She indicated that efforts are currently underway to identify and recruit sponsors for these measures. The proposed legislation includes a Commercial Law Committee measure amending Missouri Exemption Law and three Family Law Section measures to adopt: (1) the Uniform Child Custody Jurisdiction Enforcement Act, (2) the Uniform Interstate Family Support Act (UIFSA), and (3) the Uniform Premarital Agreement Act.
Larry Swall, chair of the Family Law Section, reviewed bar-drafted legislation, originally proposed at the September meeting of the Board of Governors, to change the current law related to the use and disclosure of social security numbers in domestic relations pleadings. He noted that the originally proposed legislation called for the repeal of 451.040, 452.305, 452.310, 452.312, and 452.343 RSMo. and proposed changing the current law that results in the social security numbers and the dates of birth of litigants and minor children involved in domestic matters being available as a public record. It also originally proposed requiring the redacting of that information from past files. He called attention to concerns raised by the Board regarding the potential financial burden the redacting requirement could pose on OSCA and the courts. He reviewed action taken by the Board to table the matter at the September meeting, asking the Section to consider the concerns raised about the financial cost of redacting past records and to ask for comment on the financial burden from OSCA.
Catherine Barrie reported that she wrote to OSCA asking for a comment on the measure, but has not yet received a substantive response. Mr. Swall reported that the Family Law Section further considered the issues and agreed that the potential identity theft risk to the citizens involved in domestic matters is too great to allow the redacting issue to delay support for changing the law as it relates removing the public records requirement in future cases. He reported that the Section is now proposing the legislation without the redacting requirement.
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 measure be approved as revised. The motion was approved.
4. Special Committee Reports:
A. Judicial Performance Evaluation Committee
Dale Doerhoff provided a preliminary report on the impact that the new Judicial Performance Evaluation Program had in judicial retention voting during the November 2008 general election. He reported that voter participation is the recognized standard used to evaluate the success and effectiveness of the program. He noted that statistics indicate that voters tend not to vote on judicial elections if they do not feel they are informed. As a result, voter participation can be measured in terms of “roll off,” the drop off between the top of the state ticket and the judicial retention elections.
He compared Missouri’s “roll off” in judicial retention elections with other states (Colorado 31% to 26% and New Mexico 31% to 27%) and noted that Missouri did at least as well as both of these states. He also provided a breakdown of “roll off” in Missouri by county.
He reported that the cost to inform voters about the availability of JPE resources was $74,000. He further reported that by election day in November, 42,631 persons had visited the Missouri Bar JPE website.
He further reported that the total cost for the JPE program was about $150,000. He anticipated very little cost in 2011 and indicated that costs anticipated for the next judicial election in 2012 will depend on the situation at that time, including decisions as to the level of promotion needed. He reported that several other states receive money to conduct and promote the JPE program from state revenue with our neighboring state, Kansas, spending $250,000.
He reported that the JPE committee will conduct a self-evaluation that will include asking the judges who were evaluated in 2008 for their feedback and comments. The committee will also look at developments in the other 19 states with JPE programs to consider additional refinements that may be applied to the JPE program in Missouri in 2010. He reported that the JPE Committee will make a formal report to the Supreme Court of Missouri and The Missouri Bar after the evaluation is completed.
He commended the decision to initiate and conduct this program through The Missouri Bar, and expressed appreciation to the 72 members of the JPE committees, half of which were non-lawyers.
B. Lawyer Advertising Committee
Mark Levison reported that the Special Committee on Lawyer Advertising has met to organize the comments received from members of the Bar during the past several months. He further reported that several members of the committee attended the open forum meeting jointly hosted by the Civil Practice and Procedure and Tort Law Committees. He noted that the committee has received a memo from OCDC expressing concerns. He also reported that he plans to meet to discuss the rules with the ACLU and FTC. He concluded that the committee plans to weigh all of the information received to date and will report at the January board meeting.
C. Client Security Fund Committee
Chris Janku reported that the Client Security Fund Committee received 45 claims through November 6. He reviewed previous payments authorized in 2008, noting that the Board approved payment on five claims at its July meeting for a total of $4,465.00 and approved the denial of three claims. He reported that the committee is now recommending additional payment of 11 claims totaling $39,084.47, the denial of ten claims and the dismissal of one claim.
He explained that the one claim is being dismissed because the attorney paid restitution directly to the client. He reported that the committee may submit additional recommendations at the January meeting of the Board of Governors. It was moved and seconded to approve the committee recommendation. The motion was approved.
D. Task Force on the Public Defender System
Keith Birkes reported for Douglas Copeland, chair of the Task Force on the Public Defender System. He reported that Mr. Copeland is recovering from open heart surgery and is doing well. He reported that Missouri’s Public Defender System continues to have a lot of problems meeting the tremendous demands to provide constitutionally required defense of criminal indigent defendants.
He briefly reviewed the previous decision of the Board to authorize an independent caseload study by the Spangenberg Group to provide an objective analysis of workload issues specific to the Missouri Public Defender System. The study is expected to include the establishment of a weighted caseload standard that can be applied to the current and future circumstances facing individual field offices, provide data to support funding requests to the Legislature and address needed efficiencies in the current Public Defender System. He reported that the study is proceeding, but results are delayed due to the serious medical condition of Bob Spangenberg, a principal with that organization.
Mr. Birkes noted that the objective study is expected to show that Missouri is the worst funded system in the United States and that the staff is near or close to the most overworked in the country. However, he also noted that the fiscal condition of the state has deteriorated significantly and questioned the likelihood that additional funding will be available from the Legislature. He further reported that the IOLTA Foundation has agreed to approve the Board of Governors request to provide $7,000 to help fund this study.
He reported that some of the public defenders offices have already reached and expect to soon reach the point where they can no longer ethically accept additional cases and provide effective counsel. It is expected that the private bar will be called upon to assist in such cases. He noted that Greene County is one area that has reached this point and lawyers in that county have taken action to help. He further noted, however, that this is a public responsibility and a constitutional issue and the use of private attorneys, who may or may not have expertise in criminal law, may not necessarily be the most effective way to address this problem.
He reported that the Public Defender System anticipates that at some point they will need to litigate the issue of the adequacy of the Public Defender System and are receiving the benefit of counsel from an attorney with the Holland and Knight firm who is providing pro bono counsel on these matters.
He reported that The Missouri Bar continues to stand ready to assist in all ways possible and the Task Force will continue to keep the Board informed.
E. Task Force on Professionalism
Skip Walther reported that the Task Force on Professionalism conducted its first meeting. He reviewed their charge, explaining that the group intends to survey current ethics and professionalism efforts to see if there are needs that are not being met and if so, identify how best to address those needs. This includes analyzing whether there is a need for a commission specifically focused on ethics and professionalism. He noted that several members of the Bar staff and the chair of the Professionalism Committee attended the meeting and provided a synopsis of the many Bar programs currently in place to address ethics and professionalism. He reported that the committee members concluded the meeting with a discussion on the need for a commission, in addition to the current Professionalism Committee of The Missouri Bar.
He reported that the committee decided to invite a representative from one of the fourteen states that currently has a commission in place. He noted that the commissions throughout the country differ greatly in terms of their missions, activities, as well as whether they are appointed by the Supreme Court or are based within the bar.
Mr. Walther indicated that the committee plans to meet again prior to the Mid- Year Meeting and he will provide an update at that meeting.
5. Financial Report:
A. Proposed 2009 Missouri Bar Budget
Erik Bergmanis reported that the Finance Committee and the Executive Committee jointly recommend the adoption of the proposed 2009 budget of $9,699,710, which reflects a 1% increase in expenditures over 2008. He noted that inflation is estimated at 4%. He also reported that the proposed budget would anticipate deficit spending of approximately $68,000 in 2009. He reported that deficit spending was expected, noting costs associated with the new association software package utilized by the Supreme Court of Missouri and The Missouri Bar and the need to maintain the unspent portion of the $500,000 allocated in 2008 to counter attacks directed against the justice system, that portion being approximately $250,000. He also reported the recommendation includes a change to the 2009 proposed budget as provided, which would be a $2,200 reduction in the proposed YLS budget. It was moved and seconded that the proposed 2009 budget, with the reduction in the YLS budget, be approved. The motion was approved.
B. Auditor Letter Relative to Security of Assets of The Missouri Bar
Keith Birkes reported on a letter included in the budget materials from the accounting firm of William Keepers pertaining to a review of the Bar’s asset protection policies and procedures. He reported that he and Tom Simon asked William Keepers to conduct a review of the Bar’s assets within Central Bank to ensure that the Bar did not have assets at risk in light of the current volatility of the financial markets. The review included ensuring that Central Bank was collateralizing the Bar’s assets. Williams Keepers reported that Central Bank was complying with the agreement and assets were reasonably secure. They recommended that the Bar update the agreement and efforts are underway to do so.
6. Appointments:
A. November Appointments
(1) Client Security Fund Committee
Ms. Phebe Ann La Mar’s term on the Client Security Fund Committee is expiring and she is not eligible for reappointment. The Executive Committee recommended the appointment of Julia Grus. It was moved and seconded that Ms. Grus be appointed. The motion was approved.
(2) Complaint Resolution Committee
Ms. Suzanne B. Bradley’s second term is expiring and she is not eligible for reappointment. It was moved and seconded that Greg Dorshorst be appointed. The motion was approved.
(3) Missouri Press-Bar Commission
Judge Jerry Venter’s term is expiring and he is eligible for reappointment. It was moved and seconded to reappoint Judge Venters. The motion was approved.
(4) IOLTA Foundation
The Missouri Bar Board of Governors appoints a non-lawyer member of the IOLTA Foundation Board. The term of Mr. John Joines is expiring and he is eligible for reappointment. It was moved and seconded that Mr. Joines be reappointed. The motion was approved.
B. January Appointments
here are no appointments to be considered in January.
7. Officers’ Reports:
A. Executive Director’s Report
(1) Mid-Year Seminar
Keith Birkes reported that board members were sent their travel information for the Mid-Year Seminar. He noted that a limited number of rooms were available to stay over on Saturday night. He reported that board members who have not indicated that they would like to stay through Saturday night should inform the Bar immediately, so availability can be checked.
(2) Supreme Court Release of Member Contact Data
Mr. Birkes reported that the Supreme Court of Missouri has informed The Missouri Bar that member contact data owned by or in the control of the Court is subject to the open records or Sunshine Law. And the Court intends to respond to open records requests for that data. The Court intends to release contact information, which is expected to consist of name, address and bar number. He reported that the Court has asked the Board for comment.
Mr. Birkes noted that The Missouri Bar has long taken the position that it is not subject to the open records law and this position has been supported by a recent legal review and analysis.
He reported that the Executive Committee recommends that the Board ask the Supreme Court of Missouri to provide maximum notification of their intentions to release this contact information to members of the Bar in order to give members the opportunity to change their address information. He noted that some bar members use their home addresses and may want to make a change, knowing that the information will be public.
Mr. Birkes further explained that the Bar’s current policy is to release individual member contact information when that information is specifically requested by mail or telephone, unless the Bar member has asked that the information not be released and has provided valid support for such a privacy request.
(3) Members-Only Website Contact Information Harvesting
Mr. Birkes reported that measures have been taken to prevent the accessing of contact information in the members-only secure section of The Missouri Bar website to the greatest extent possible, noting that such 100% security is not possible in an electronic computer environment. He further noted that there have been indications that members have used their access to the members-only section to harvest contact information for mailing lists.
He noted that this is not considered a proper use of member information and efforts will be taken to prevent or dissuade this use of the secure section of the site, including the posting of a warning to members not to use the site for such purposes.
B. Vice-President’s Report
No report.
C. President Elect’s Report
Skip Walther reported that he and Media Relations Director Jack Wax are in the process of scheduling speaking engagements with civic organizations and in non-legal venues, mainly in rural areas of the state.
He also reported that he has been exploring locations for the 2010 Mid-Year Seminar, but has not yet decided on a venue. He encouraged members of the Board to share their thoughts about the meeting in general, as well as provide any suggestions for venues.
D. President’s Report
(1) Visits to Local Bar Associations
Tom Burke reported that he has been visiting local bar associations and meeting with bar members across the state. He reported that he plans to continue these visits throughout his term.
(2) Meeting with Past Lon Hocker Award Recipients
Mr. Burke reported that he has met with some of the past recipients of the Lon Hocker Award, in an effort to garner their support and involvement to assist with the professionalism initiative within The Missouri Bar. He indicated that he plans to expand this effort and meet with past Lon Hocker Award recipients throughout the state.
(3) Judicial Performance Evaluation and Greene County Non-Partisan
Court Plan Initiative
Mr. Burke commended those involved in the expansion and improvement of the Judicial Performance Evaluation, as well as those involved in the effort to bring the Non-Partisan Court Plan to Greene County.
(4) Public Information Efforts Addressing Attacks on the Justice System
Mr. Burke commented on the public information efforts of The Missouri Bar during the past year, noting that these efforts were necessary and a good and effective use of resources in support of an independent judiciary and the administration of justice.
There being no further business, the meeting was adjourned.
Respectfully submitted,
Keith A. Birkes, Secretary