Board Minutes - January 16, 2009

South Seas Island Resort, Captiva Island, Florida

Members:
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

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

Member Present by Telephone
William R. Bay
Erik Bergmanis
Alan B. Gallas
John R. Gunn
W. Edward Reeves
Patricia A. Sexton

Members Absent
Suzanne B. Bradley
Dana Tippin Cutler
Vincent F. Igoe, Jr.
Karen King Mitchell
Max E. Mitchell

Also Present
Hon. Richard Teitelman
Chris Janku
Robert Stoeckl

1. Minutes:
It was moved and seconded that the minutes of the meetings of the Board of Governors of November 21 and of the Executive Committee of November 21 and December 12, 2008 be approved. The motion was approved.
2. Financial Report:
Keith Birkes reported that finances of the Bar are in good shape as of the end of 2008. He reported that the revenues received by year end were slightly higher than anticipated and expenses were lower than expected. He reported that one reason expenditures were substantially lower than expected is due to the amount spent to defend against attacks on judicial independence, only about $250,000 of the $500,000 authorized by the Board of Governors in last year budget was needed.
He further reported that The Missouri Bar has substantial reserves in the early stages following the recent dues increase, but he cautioned that the reserves are not expected to last as long as they did during the period between the two previous dues increases (14 years). He noted that the Board of Governors will need to continue to closely monitor the financial condition.
3. Legislation:
Keith Birkes called attention to the packet of information provided that contains summaries of bar drafted legislation. He reported that efforts are currently underway to secure legislative sponsors for the bar-drafted measures, which focus on commercial and family law. He reported that a bill has been filed that would have the effect of politicizing Missouri‘s Non-Partisan Court Plan. He noted that the measure does not appear to have significant support in this session, but it will be monitored closely.
He also reported that a bill has been filed to disapprove the Missouri Citizens’ Salary Commission on Compensation for Elected Officials report that concluded elected officials, including Missouri’s judges, should receive any cost of living or merit salary increase which may be authorized for all state employees. He reported that it was uncertain whether there will be support from the governor or within the legislature to provide a salary increase for state employees in the current economic climate. There are indications that the Commission report has been initially met with significant opposition. He reported that hearings are expected to be scheduled for next week and representatives of the bar and bench will be there to testify in favor of an increase for the judiciary. He also called attention to the legislative process related to the Salary Commission Report, noting that the report must be disapproved by two-thirds of both the House and Senate by February 1, otherwise the recommendations that were made will go into effect.
Mr. Tom Burke reported that a Legislator Appreciation Dinner was held in St. Louis the week before the Mid-Year Seminar. He noted that about 20 legislators attended and thanked the many members of the Board of Governors who also attended. He reported that another dinner is scheduled for January 22 in Kansas City.
4. Committee Reports:
A. Lawyer Advertising Committee Report
Mr. Mark Levison reported on the status of the lawyer advertising rule review and analysis. And he requested input from the Board regarding the actions and direction of the committee activities. He reviewed the current structure within the committee, noting the wide diversity of representation among the committee members.
He briefly reviewed the actions taken by the Lawyer Advertising Committee during the past six years, including the initial analysis of key advertising issues and the drafting of the prior rule changes that were enacted verbatim by the Supreme Court of Missouri. He further reviewed additional refinements needed and taken several years after the initial changes. He discussed more recent issues regarding perceptions and criticism about the lack of enforcement of the current rules, noting that these issues were among the reasons to reconstitute the latest iteration of the Lawyer Advertising Committee. He noted that other reasons to reconvene the committee included efforts initiated by MATA to address lawyer advertising through legislative action.
Mr. Levison provided examples of lawyer advertising, showing three television commercials via DVD.
Mr. Levison noted that the committee’s proposed rule changes have been submitted to the membership for comment on multiple occasions and he briefly summarized the main themes revealed in the comments received, both positive and negative. He noted that he has also met with the ACLU and the Federal Trade Commission.
Mr. William Lasley provided a review of the actions taken in other states, as well as a review of the court decisions related to lawyer advertising. He noted that it has been 14 years since a case on lawyer advertising has been decided by the Supreme Court. He further noted that there are a number of challenges to lawyers advertising in courts across the country, however, he did not discern a consistent trend in the rulings.
Mr. Levison led a discussion related specifically to the rule changes currently being explored. Concerns were raised about potential constitutional challenges and the cost of defending such challenges. The discussion also included issues related to the burden and cost involved in requiring OCDC to maintain a repository of lawyer advertisements; the proposed use of an outside company to assist in the education, monitoring and compliance of advertising rules; the use of celebrities in lawyer advertising and current FTC rules on the subject; the purpose and requirement for lawyers to submit an accompanying affidavit with their advertisements; actions to address advertising by lawyers from outside of Missouri; the effect the proposed rules may have on lawyer and law firm websites, blogs and involvement in social media; the potential unintended consequences the rules could have on law firms using sponsorship advertising; and the potential need to exempt Legal Services advertising from proposed rule changes. Discussion also focused on ensuring that distinctions continue regarding efforts to regulate and protect the integrity of the profession without unduly infringing on the First Amendment. It was noted that the committee may be in a position to bring final recommendations for proposed changes for action by the Board of Governors at the spring meeting.
B. Client Security Fund Committee Report
Mr. Chris Janku reported that the Client Security Fund had received 50 claims during 2008. Additional claims were pending from previous years. The Board of Governors had approved five claims totaling $4,465 at its July 2008 meeting and 11 claims totaling $39,084.47 at its November 2008 meeting. The committee is now requesting authorization for payment of 10 claims totaling $63,909, denial of four claims and the dismissal of 10 claims because restitution was received by the clients or the claims were not eligible for consideration under Article 2.2(d) or the Regulations and Rules of Procedure that govern the Fund. He noted that the current recommendations for payment include a claim previously denied because of insufficient evidence that the client suffered a loss. Subsequent to this denial, evidence has been presented that the lawyer forged an endorsement on the settlement check. The payment being recommended is $50,000, pending receipt of a copy of the check.
He reported that the balance of the Fund as of December 31, 2008 was $165,781.37 and the 2009 budget appropriation is $195,000. It was moved and seconded to approve the fund payments as proposed. The motion was approved.
C. Family Law Section
Mr. Keith Birkes reported that the Missouri Bar Family Law Section voted to change the structure of its Executive Council, by expanding representation from three geographic regions to six. The purpose of this change is to create more diverse representation from throughout the state. The six regions would result in four separate “out state” regions, in addition to one each covering Kansas City and St. Louis. The four out state regions would include Columbia/Jefferson City, Springfield and Northern and Southern out state regions. It was moved and seconded to approve the restructuring outlined and approved within the Family Law Section. The motion was approved.
D. Young Lawyers Section Council
Mr. John Gunn reported that the YLS Council has not met since the last meeting of the Board of Governors, however, he was in a position to report on a number of activities that have taken place since November.
Calling attention to the minutes of the Missouri Bar Executive Committee meeting on December 12, he reported that this meeting included a discussion with the leadership of the Young Lawyer Council about ways to better integrate the YLS activities with those of the Missouri Bar in general. He noted that the meeting discussions focused on YLS budget considerations; coordinating YLS meetings with the Spring/Fall and Annual Meetings of The Missouri Bar; expanding involvement of members of the YLS into the substantive work of the bar (including providing for representation of the YLS within each open enrollment committee of the Bar); and a process for comprehensive review of the YLS projects to ensure that programs and activities have a direct relationship to the administration of justice as defined by case law applicable to unified state bar associations.
He reported that he will be participating in a conference call with the ABA related to the operation of a “Wills for Heroes” program. He further reported that the next YLS Council meeting is scheduled for February 20, noting that the program will include a CLE session on professionalism. There will also be a meeting of the Special Needs Task Force, which will include representatives from social service agencies. The summit will focus on how the YLS can provide law-related information and resources to the public on issues related to individuals who have special needs and the families of those with special needs.
5. Appointments:
A. Current Appointments
Mr. Birkes reported that there were no current appointments.
B. May Appointments
Mr. Birkes reported that the Board of Governors will have an appointment
to the Fee Dispute Resolution Committee to consider at the May meeting
and that information related to that appointment has been provided in the
meeting materials.
6. Officers Report:
A. Executive Director’s Report
Mr. Keith Birkes reported that there are several year-end reports contained in the Board packet and distributed at the meeting. If any Board members have any questions, please let him know. He reported that information had been sent on the board listserv that the State of the Juduciary Address will be on January 20 at 10:30 a.m. in the House Chambers and all board members are invited to attend the address and the luncheon sponsored by The Missouri Bar, which takes place immediately following the.
Mr. Birkes further reported that the Executive Committee is planning to have a gathering with local bar representatives the evening before to discuss legislative issues.
He reported that the Mid-Year Seminar this year is financially self-sufficient, noting that there were an adequate number of paid registrants to cover the cost of the seminar.
He announced that this evening’s reception and dinner is in the King Crown room. The reception begins at 6 p.m. with a casual dinner at 7 p.m. A hospitality room is available after dinner.
B. Vice-President’s Report
Mr. John Johnston reported that he is a members of the Chronic Mental Disorder Task Force. He noted that this type of task force and the attention to issues related to the mental health of Missouri’s lawyers is long overdue. He invited anyone else who is interested in this area to contact him. He noted that this is a very valuable and important area that needs attention in the profession.
He reported that the Annual Meeting in 2011 will be at the Hyatt Regency rather than the Westin Crown Center. The changes were made for business reasons. He polled the Board as to whether they would be interested in returning to Captiva Island for the 2011 Mid-Year Seminar. He commended the efforts underway for the Young Lawyers’ Council to get more involved in the senior bar.
C. President-Elect’s Report
Mr. H. A. “Skip” Walther reported that the Professionalism Task Force has met and will be meeting again on January 30. He called attention to the results of a survey that was sent to approximately 3,000 members of the Missouri Bar. He encouraged Board members to review the results. He noted that the Professionalism Task Force will review the survey results at its meeting in January. He further reported that at that meeting, they hope to hear from a professionalism task force expert from Florida who will discuss what professionalism commissions do and how they operate in other states, as well as how their activities may be similar or different from what is being considered in Missouri.
Mr. Walther also reported that he has not yet decided on the location for the 2010 Mid-Year Seminar.
D. President’s Report.
(1) President’s Newsletter
Mr. Tom Burke called attention to the Board newsletter, which he is using to keep all members of the Board up-to-date on key activities between meetings and to foster greater communication within the Board.
(2) Economic Change in Missouri’s Legal Community
Mr. Burke reported that the economy is becoming an increasingly critical problem and lots of people are facing financial difficulties within the public at large and within the legal community. He reported that he is going to ask all of the committees to assess their programs, their written materials and to do some self-analysis to see if there are any actions that they can take to assist the public and lawyers in dealing with some of the economic issues that exist, including bankruptcies and foreclosures.
Mr. Burke noted that a lot of lawyers are suffering in this climate, citing increased layoffs, and many attorneys struggling to maintain their practices. He reported that he would like to establish a committee of board members to address what the bar can do to assist members who are having financial problems as well as those who are experiencing emotional issues related to financial stress. He suggested that actions can be taken related to lawyer placement service, MOLAP, CLE and other programs. He noted that it is important to reach out to membership on these issues. He reported that the Solo and Small Firm Conference is planning to address some of these issues and noted that this conference targets many of the lawyers who are likely to be most affected.
He asked Board members to let him know if they would be interested in serving.
There being no further business, the meeting was adjourned.
Respectfully submitted,
Keith A. Birkes, Secretary