Board Minutes - May 8, 2009

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, Past President
Keith A. Birkes, Secretary

William R. Bay
Erik Bergmanis
Stephen R. Bough
P. John Brady
Hon. Richard Bresnahan
Thomas J. Casey
Mark W. Comley
Dana Tippin Cutler
Brian Francka
Carol Chazen Friedman
Alan B. Gallas
Tracy H. Gilroy
John Gunn
Richard F. Halliburton
Paul Henry
Vincent F. Igoe, Jr.
Jennifer M. Joyce
Hon. John F. Kintz
Mark H. Levison
Karen King Mitchell
Max E. Mitchell
Matthew M. Mocherman
Douglass F. Noland
Megan E. Phillips
W. Edward Reeves
Brett W. Roubal
Deanna K. Scott
Allan D. Seidel
Patricia A. Sexton
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:
Suzanne B. Bradley
Edward J. Hershewe
H.A. Skip Walther

Attending by Telephone:
William J. Lasley
Neil F. Maune, Jr.

Also Present:
Millie Aulbur
Catherine Barrie
Lucas Boling
Jim Brady
Kent Hopper
Chris Janku
Dan Lehmen
Jeff Markway
Alexa Pearson
Linda Oligschlaeger
Alan Pratzel
David Kargel
Delores Shepherd
Robert Stoeckl
Gary Toohey
Jack Wax

1. Minutes:
It was moved and seconded that the minutes of the meeting of the Board of Governors of January 16 and of the Executive Committee meetings of February 2, February 23, March 30 and April 27 be approved. The motion was approved.
2. Finance Committee Report:
Mr. Erik Bergmanis reported that the The Missouri Bar’s finances are in good shape. He reported that less interest revenue was earned this year. He also reported that there is less revenue being generated by late fees on member dues than in previous years. He noted that more members are paying on time this year and indicated that this trend may be the result of the new option to pay by credit card.
He further reported that the telephone system at The Missouri Bar headquarters is in need of repair; he outlined options to fix the system and indicated that Dan Lehman recommended replacing the entire system, with the exception of the telephone units, at a cost of $14,500, which is within budget. It was moved and seconded that the system be fixed as recommended, the motion was approved.
He reported that the Executive Committee and YLS officers have established a fiscal policy to be used for future administration of the Section. A motion was made and seconded that the Board of Governors adopt the YLS fiscal operation policy. The motion was approved.
2. Legislation:
Ms. Catherine Barrie reported on the status of bar drafted legislation. The Commercial Law Committee proposal related to tort actions modifying the exemption from attachment by creditors in bankruptcy was tabled. The UCCJEA legislation proposed by the Family Law Section was included in two different omnibus bills. Additional Family Law Section measures – the Uniform Premarital Agreement Act and a measure to prohibit the disclosure of Social Security numbers in family court documents – are also included in omnibus legislation. It is uncertain whether either of the voluminous omnibus measures will pass. Ms. Barrie commended Family Law Section Chair Larry Swall for his work to resolve issues raised by the Office of State Courts Administrator and Division of Family Services related to the changes in disclosure of Social Security numbers. She further reported that HB 222, which provides for the use of $2 million dollars of federal stimulus money to fund contract representation for the Public Defender System, passed.
Ms. Barrie reported that in addition to HJR 10, relating to the Nonpartisan Court Plan, a number of measures were introduced attacking the bar and the judiciary, but lacked significant support and have not progressed in this session. These measures included: court jurisdiction stripping; changes to judicial impeachment procedures and a bill to eliminate the mandatory bar. She further noted that the judiciary budget is expected to pass without significant cuts.
3. Committee Reports:
A. Missouri Bar Advisory Committee
Jennifer Gille Bacon, chair of the Advisory Committee of the Supreme Court of Missouri reported on a proposed modification to Rule 4-1.15 and other regulations that would make it mandatory for financial institutions holding lawyer
Trust accounts to report overdrafts on these accounts to OCDC.
Ms. Bacon reported that the ABA had, at the request of the Supreme Court of Missouri, performed an evaluation of Missouri’s disciplinary system in 2000 and recommended that overdraft reporting be implemented. She reported that a subcommittee of the Advisory Committee, which included two members suggested by The Missouri Bar, had been appointed to study the issue and have developed the proposal under consideration.
She noted that the proposed rule and regulation modification would require an automatic notification of the attorney and OCDC when an overdraft occurs in a trust account. She noted that 39 states currently have such a requirement of financial institutions, and she noted that such a system serves the purpose of providing an early warning signal of potential problems. This early warning indicator would offer an opportunity for intervention in the form of education, training and practice management assistance to lawyers in relation to management of trust accounts and early intervention could minimize the damage in cases where a lawyer may be committing a criminal offense, thus protecting the public.
She noted that during the review process, the subcommittee found that one national bank, which currently holds 14 percent of the trust accounts of Missouri lawyers, has been providing such overdraft notification as a result of internal policy. The notices had been going to the attorney and IOLTA. Subsequent action was taken to have these notices sent to OCDC rather than IOLTA. She reported that a review of the notifications being provided by this financial institution and a review of the results experienced in other states which have the rule in place, indicate that Missouri can expect hundreds of notifications initially with the hope that the number would be reduced over time.
It was moved and seconded that the Board of Governors recommends that the Supreme Court of Missouri approve the proposal of the Advisory Committee. The motion was approved.
B. Special Committee to Assist Lawyers in a Changing Economy
Committee Chair Lynn Ann Vogel reported that the Special Committee had met on two occasions to discuss actions and activities designed to assist lawyers facing challenges in the current economy. She reported that the committee reviewed and performed an inventory of the wide range of resources that are currently in place and available from The Missouri Bar that would be of benefit to lawyers in need. These existing resources were compiled and redistributed at a one-stop location on the Bar’s website, as a way to provide easy access to comprehensive resources online.
Ms. Vogel also reported that the Bar will be launching a new online private, professional networking resource exclusively for members of The Missouri Bar. She reported that the resource, which is provided by a company called Affinity Circles, will offer new networking and communication options for members, including a new resource to post and search for employment opportunities. She thanked the Executive Committee for approving this project, which will be called MoBarCircle. She indicated that the network will be tested by a group of about 1,000 members before it is released to the full membership in June.
Ms. Vogel further reported that the committee is initiating efforts to provide CLE program scholarship opportunities for members in need. She noted that initial efforts are focused on scholarships for members to attend the Solo and Small Firm Conference in June. She reported that there are currently three privately funded scholarships for that conference and President Burke has approved ten additional scholarships to be funded through the President’s discretionary budget. She indicated that The Missouri Bar’s CLE Department has consistently provided CLE options for members in need on a case by case basis. She also noted while members/firms can currently make contributions for this type of purpose, the committee is interested in developing a formal scholarship program fund through the Missouri Bar Foundation, so contributions are considered a charitable deduction and funds can be accumulated for the purpose of funding scholarships.
C. Task Force on Professionalism
Keith Birkes reported on behalf of Task Force Chair H.A. Skip Walther, who was
attending an American Bar Association meeting. Mr. Birkes reported that Chief Justice Laura Stith had asked The Missouri Bar to perform a comprehensive review of all its efforts related to professionalism to make sure that the Bar was doing all that was possible in this area. He reported that a special task force was appointed, which included President-Elect Walther as its chair, the chair of the open enrollment standing committee on Professionalism, Tom Lang , as well as a broad representation of judges and lawyers from across the state. The task force studied professionalism programs and efforts in place throughout the U.S. The task force concluded that the existing efforts through the open enrollment Professionalism Committee of The Missouri Bar are effective and should continue. It was also concluded that it would be beneficial to add to that committee structure a council representing groups and entities with a stake in professionalism, such as the Advisory Committee, OCDC, law schools, local and specialty bars. The specific task of this council would be to annually identify at least one issue related to professionalism that should be pursued and focused on for that year. It was moved and seconded to adopt the Task Force on Professionalism’s recommendation to add a stakeholder council to the current Professionalism Committee structure for the purposes outlined above. The motion was approved.
Mr. Birkes also reported that the Task Force recommends a change in the ethics, professionalism, and malpractice prevention MCLE reporting rule. He reviewed the current requirement that Missouri lawyers complete at least three hours of ethics related CLE every three years. He reported that the Task Force asks the Board of Governors to make a recommendation to the Supreme Court to change the rule and require one hour of ethics related CLE each year. He noted that the Task Force believes this change would require lawyers to focus on ethics on a more consistent basis and it would also have the effect of simplifying the reporting of ethics hours. Questions were raised as to whether a one hour annual requirement would result in ethics content receiving a cursory treatment within CLE programs and alternative hourly requirement changes were offered ranging from two ethics hours annually to six hours over three years.
Questions were also raised as to whether law practice management and malpractice avoidance programming should fulfill the ethics requirements as well as the impact such a change could have on CLE providers. A motion was made and seconded to table the discussion of this recommendation for further consideration by a special committee to be appointed for this purpose. The motion was approved.
D. Lawyer Advertising
Mark Levison reported that in an effort to hear from everyone before preparing a final report for action by the Board, the committee held a meeting in Kansas City, which was attended by some large advertisers as well as Legal Services. The committee also had a meeting with the Advisory Committee of the Supreme Court.
He noted that in previous years concerns were expressed about the lack of enforcement, and arguments were raised about the futility of promulgating new rules when the current rules were not being enforced. He reported that OCDC has pledged that it will enforce the rules.
As a result, he reported that a key issue now is one of reporting violations to OCDC and he reviewed three options developed by the committee, noting some pros and cons for each option. The options outlined were:
Option 1 - Dedicated OCDC Employee
This option would envision having an employee at OCDC handle reporting. The person would check out the billboards, TV ads and yellow page ads, and other media and turn suspected violations over to the enforcement arm of OCDC. A dedicated OCDC employee option would remove the potential for competition issues among lawyers that might influence reporting. A negative issue for this approach would be the cost to fund such a position, especially in the current economic climate.
Option 2 – Oversight Committee
This option envisions oversight committees in each of the appellate districts - Eastern, Western and Southern. The committee members could be appointed by the Board of Governors and they would be tasked to identify alleged violations of the rules. Lawyers could also report possible violations to these committees.
Option 3 – Self Reporting by Lawyers
Under this option lawyers would report violations directly to OCDC. This option could be enhanced by holding education sessions about the rule changes made in 2006 and new rules, if any are adopted in 2009.
Concerns were expressed regarding a potential conflict of interest with an employee of OCDC identifying violations. Other concerns were raised about establishing clear standards for lawyers to use in evaluating whether ads are misleading.
Alan Pratzel of the OCDC commented on the current practice used to deal with violations, explaining that their policy begins by encouraging voluntary compliance when a violation is found. He further briefly commented on the options outlined and potential issues that some of the committee’s options may present for OCDC, including adding a “policing” role to the traditional enforcement role of OCDC under the first option. He also indicated that an Advertising Committee requested review of OCDC files related to advertising violations indicates a low number and possible underreporting.
Tom Burke reported that the Executive Committee recommends that the Board ask the Advertising Committee to finalize its recommendations for action by the Board of Governors at the July meeting and that the committee circulate those recommendations by July 1, so the Board will have time to consider the proposals prior to the meeting. It was moved and seconded to accept the recommendation as stated. An objection was raised to the motion, noting that the committee is working through some difficult issues and should be allowed to proceed on its own timetable. The motion was approved. Alan Gallas voted “no.”
E. Young Lawyers Section Council
Mr. Gunn reported that the YLS Council held its February meeting in St. Louis. This meeting featured a CLE that was very well attended and it also included a Special Needs Task Force Summit. YLS Chair Eric Schmitt assembled the task force to explore how the bar can serve the needs of this community within a legal context. Mr. Gunn reported that the summit attracted 15 – 20 individuals representing business entities, organizations, families and members of the bar involved with the special needs issues. A report was drafted containing recommendations from the meeting and these recommendations will be taken up by the YLS Council at its next meeting at the end of May.
He reported that the next meeting of the YLS will be May 28 – 30. This meeting will be focused on affiliate outreach. The YLS Council will meet and speakers are invited on topics that include the effect of the economy on law schools, the independence of the judiciary, efforts related to the Non-Partisan Court Plan within the legislature and activity and program reports from entities such as BAMSL, KCMBA and the Association for Women Lawyers.
He noted that the Executive Committee asked the Probate and Trust Law Committee to review and determine whether the ABA initiated “Wills for Heroes” program would be appropriate for the Board of Governors to consider undertaking for the YLS. Mr. Gunn reported that he made a presentation to the committee and the Probate and Trust Law Committee voted that it was an appropriate undertaking.
Mr. Gunn further reported that the YLS leadership has been working with the Executive Committee on the fiscal policy adopted by the Board today, as well as reviewing the projects that the YLS is currently involved in to assess whether they are appropriate activities for the YLS of a mandatory bar.
F. Delivery of Legal Services
Mr. Halliburton reported on the portion of the Missouri Bar dues that are distributed to the Legal Services programs within the state. He reported that the approximately $560,000, accounts for about 3 percent of the program funding within the state. He expressed appreciation for this funding, noting that the needs are increasing and some funding sources are decreasing due to the current economic climate. He explained that these funds are unrestricted, and therefore, allow for the flexibility to use the money where it is most needed. He reported that this money is also useful as matching funds to attract additional grant funding dollars.
Mr. Halliburton also reported that the Delivery of Legal Services Committee established a subcommittee to work on pro bono. He noted that he and Deanna Scott are members of the Committee on Access to Family Courts (CAFC). He reported that CAFC passed a motion at its last meeting supporting the concept of expanding pro bono recruitment and management on a statewide basis. He voted against the motion. He reported that subsequent to that meeting Deanna Scott provided a response in writing, outlining issues of duplication and potential conflict with existing Legal Services volunteer lawyer programs. He further reported that the DLS Committee passed a motion today that establishes a subcommittee of the DLS committee to work with the drafter, who is also a member of the DLS committee, to develop a new cooperative plan which he hopes will take into consideration all of the issues raised by the LSC programs.
He reported that this action is being brought to the Board’s attention because the current plan envisions the involvement of The Missouri Bar resources in terms of database development and management as well as other activities and may require action by the Board in the future.
G. Solo & Small Firm Conference Chair Report
Ms. Mary Lou Martin expressed her appreciation for the additional ten scholarships approved for the upcoming Solo and Small Firm Conference. She called attention to the conference brochure provided at this meeting and invited all Board members to attend and participate in the Board of Governors reception at the conference.
H. Commercial Law Committee Report
David Kargel reported on a recommended change to RSMo Section 513.430 (1)(10) related to the Missouri garnishment rule and the exemption of direct deposit funds for senior citizens. He noted that the recommendation represents a balanced approach that removes the burden of the judgment debtor in designating that certain funds fall under the exemption. It was moved and seconded that the Board of Governors recommends the proposed change to the Supreme Court Civil Rules Committee. The motion was approved.
I. Editorial Board
Bill Bay reported that the staff and committee are looking at a possible redesign of the Missouri Bar Journal. He also made the Board of Governors aware that the Missouri Bar Journal offers advertisement opportunities at a far lower cost than the commercial entities and the Journal reaches more lawyers.
J. Gender and Justice Committee
Megan Phillips provided a brief update on the activities of the Gender and Justice Committee, noting that the committee is planning to launch a follow up survey to a study conducted in 1993 that focused on gender bias in the court system. The purpose of the follow up survey will be to identify what has and what has not changed in regard to gender bias. She reported that as part of the process, the committee is reconstituting a special council to promote participation in the follow up study and asked Board members to provide recommendations of lawyers and judges who may be interested in participating in such a council.
4. Appointments:
A. Current Appointments
(1) Missouri Bar ABA Delegates
Mr. Keith Birkes reported that the term of James J. Robinson is expiring and he is eligible for a second term. He also reported that the second term of former Missouri Bar President Theresa L.F. Levings is also expiring and she is not eligible for reappointment. He noted that the next former President of The Missouri Bar who is eligible for appointment is Douglas Copeland. It was moved and seconded to approve the reappointment of Mr. Robinson and the appointment of Mr. Copeland. The motion was approved.
(2) Complaint Resolution Committee
Mr. Birkes reported that Ruby Bonner has resigned her position on the Committee, leaving an unexpired term. The committee recommends the appointment of Kathleen Bird to fill this vacancy. It was moved and seconded to approve the appointment of Ms. Bird to complete this unexpired term. The motion was approved.
(3) Alcoholism Intervention Committee
Mr. Birkes reported that the terms of Robert Richart of Joplin and Dan Curtis of Kansas City are expiring and both are eligible for reappointment. It was moved and seconded to approve the reappointment of Mr. Richart and Mr. Curtis. The motion was approved.
5. Officers Reports:
A. President’s Report
(1) Draft Policy for the Use of Missouri Bar Member Email Addresses
Tom Burke reported that the Executive Committee discussed the draft policy for the use of member email addresses currently before the Board and recommends approval. It was suggested that the final sentence of the draft policy be amended to read: “As to such third party groups, only proposed uses directly related to the administration of justice should be considered, and any authorized use would be strictly limited to the specific purpose requested. It was moved and seconded to adopt the policy as amended. The motion was approved.
(2) Governor’s Remarks at the Spring Committee Meeting Luncheon
Mr. Burke thanked Karen King Mitchell for inviting Gov. Jay Nixon to speak at the Spring Committee Meeting luncheon.
(3) Professionalism Task Force
Mr. Burke appointed a subcommittee to further consider the discussion held today on the change in the required MCLE ethics/professionalism credit requirement and to develop a recommendation for the Board to consider at a future meeting. The following members of the Board volunteered for this subcommittee: Mr. Henry, Mr. Squibb, Mr. Wulff, Ms. Phillips, Ms. Joyce, Mr. Starke and Ms. Vogel.
(4) Young Lawyers Section
Mr. Burke commented that it has been very beneficial to work more closely with the YLS Council, and he looks forward to that Section’s
active involvement with the Board.
(5) President’s Newsletter
Mr. Burke commented that his Board newsletter is intended to keep everyone informed as to activities that take place between Board meetings.
(6) Annual Meeting
Mr. Burke reported that planning is well underway and on track for the Annual Meeting. The CLE programs are virtually in place. The plenary sessions are almost in place and they should be confirmed in the next few weeks.
(7) Summer Meeting Talent Show
Mr. Burke reported that he is interested in having a talent show at the summer meeting. He will be forwarding more information as the date approaches. Members of the Board, YLS representatives and their families will be eligible to participate.
(8) Mini Law School
He reported that the civic education project held in conjunction with Saint Louis University Law School was a great success and very well received by the public. The attendees represented a diverse cross section
of the community and many outstanding lawyers, judges and law professors presented.
B. President-Elect’s Report
No report.
C. Vice-President’s Report
John Johnston reported that he attended the following Bar leadership meetings: Southern Bar Conference, National Association of Bar Presidents, and the Bar Leadership Institute. He met with the Republican and Democrat leadership, bar leaders in Missouri and members of the Missouri Legislature. He also reported that he has been involved with the work of a number of committees, including the recently created Mental Health Task Force. He commended President Burke and President-Elect Walther on their leadership of The Missouri Bar.
D. Executive Director’s Report
Keith Birkes reported that one week remains in the legislative session, and he will keep the Board updated on any developments, including the final status of HJR 10. He noted that Board members should have received information regarding the July Board meeting. And he reminded the Board that if they intend to file for reelection to the Board of Governors, the deadline is July 1.
There being no further business, the meeting was adjourned.
Respectfully submitted,
Keith A. Birkes, Secretary