Board Minutes - September 23, 2009

Hilton at the Ballpark, St. Louis

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
Suzanne B. Bradley
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 R. Gunn
Richard F. Halliburton
Paul G. Henry
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
Matthew M. Mocherman
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 by Telephone:
Edward J. Hershewe
Patricia A. Sexton
Members Absent:
W. Edward Reeves

Also Present:
Millie Aulbur
Catherine Barrie
Lucas Boling
Kent Hopper
Chris Janku
Dan Lehmen
Jeff Markway
Linda Oligschlaeger
Delores Shepherd
Robert Stoeckl
Gary Toohey
Jack Wax
Eric Wilson

Welcome and Introduction of New Board Members
Mr. Tom Burke recognized the newly elected board members. He also introduced the members of the Leadership Academy who were in attendance, he thanked the Missouri Bar staff for their work, and he welcomed the visitors in attendance at the meeting.
1. Minutes:
It was moved and seconded that the minutes of the meetings of the Board of Governors of July 17 and of the Executive Committee meetings of July 16 and August 24 be approved.
It was moved and seconded to amend the minutes of the July 17 board meeting to include a motion from Mr. Rueben Shelton related to reconsidering the lawyer advertising rules. The motion passed.
2. Finances:
Mr. Erik Bergmanis reviewed the year-to-date financial status of The Missouri Bar. He reported that about 86% of the budgeted revenue has been collected and approximately 57% of disbursements have been made. He noted that approximately $250,000, allocated for potential use in public information efforts, has not been disbursed. He further reported that overall the income and expenses are on track and both are expected to be at or below budgeted projections at the end of the year.
3. Legislation:
Ms. Catherine Barrie reported that four legislative proposals have been received from Missouri Bar committees/sections for the consideration and approval of the Board of Governors as bar-sponsored bills in the upcoming 2010 Missouri Legislative session.
A. Family Law Section
Mr. Larry Swall reported on three legislative proposals from the Family Law Section. He noted that the Family Law Section continues to be proactive, trying to improve through legislation the way our state law deals with families and children.
(1) Uniform Interstate Family Support Act (UIFSA)
Mr. Swall reported that this proposed legislation would amend Sections 454.850 to 454.997 RSMo, the Uniform Interstate Family Support Act. This act has been before the Board previously and received the support of this body in 2007 and 2008. Mr. Swall indicated that the only change in this year’s proposal from the versions proposed and approved previously relates to the addition of Hague Commission provisions addressing international issues on child support.
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 Premarital Agreement Act
Mr. Swall reported that this legislation would amend Chapter 452, RSMo, adding new sections to provide for a uniform approach to the interpretation and construction of premarital agreements, so that the law will be consistent within the state and with neighboring states based on the National Conference of Commissioners on Uniform State Laws. He reported that the Board approved this proposal last year and that this year’s version contains changes in language to ease the burden of proof needed to set aside a premarital agreement, when a person has been coerced into signing such an agreement. This addresses a concern expressed by the domestic violence community and within the legislature about the bill as filed last year. 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) Parenting Coordination
Mr. Swall reported that this legislation would amend Section 452.435 through 452.438 RSMo and provide that in any case involving child custody or support, the court may appoint a parenting coordinator as a neutral third party to assist the parents in resolving disputes concerning parental responsibilities and the implementation of court-ordered parenting plans.
The parenting coordinator is intended as a tool for use with families involved in high conflict situations. Mr. Swall indicated that other states have similar statutes and that the Family Law Section has tried to incorporate the best provisions of the statutes from other states in drafting this proposed legislation.
Questions were raised as to whether any empirical data has been generated showing the benefits and success of this type of law in other states, how the parenting coordinator differs from the role of the Special Master, why a parenting coordinator would be needed if a GAL was appointed, and how the parenting coordinator would be paid and what type of training would be required for parenting coordinators.
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 tabled until November and that the Board be provided at or before that time with empirical information regarding how this concept is working in other states that have statutory provisions in place and are utilizing parenting coordinators. The motion was approved. Mr. Eric Wulff voted “nay.”
B. Commercial Law Committee
Mr. Allan Gallas reported that this legislation would modify provisions to correct errors in the 2003 exemption under 513.430, RSMo. It would rephrase subsection (5) to conform to the remaining sections; remove two words from subsection (6) to protect mobile homes located on, but not attached to, the debtor’s real property; and creates a new subsection (12) exempting an unliquidated personal injury claim, not including compensation for actual pecuniary loss of the debtor or of an individual of whom the debtor is a dependent. The proposed legislation also amends 513.440 RSMo, changing the age of a dependent child from 18 to 21. 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. Appointments:
A.Current Appointments
(1) Trustees of The Missouri Bar
Mr. Keith Birkes reported that John Ruth’s first term as a Trustee is expiring and he is eligible for reappointment. It was moved and seconded that Mr. Ruth be appointed for a second term. The motion passed.
(2) Fee Dispute Resolution Committee
Mr. Birkes reported that Mr. James Condry’s term has expired and he is not eligible for reappointment. Mr. Birkes reported that Mary Lou Martin has expressed an interest in serving on this committee. It was moved and seconded that Ms. Martin be appointed. The motion passed.
B. November Appointments
Mr. Birkes called attention to three 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. Lois Zerrer’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, Nancy Gonzalez, Julia Grus, Scott Robbins and Max Mitchell.
(2) Missouri Press-Bar Commission
Mr. John Black’s term as a member is expiring. The other Missouri Bar appointees are Mark Sableman and Honorable Jerry Venters.
(3) Complaint Resolution Committee
Honorable Gary Lynch’s second term is expiring and he is not eligible for reappointment.
5. Committee Reports:
A.Leadership Academy
Mr. Robert Ortbals and Ms. Kristol Whatley reported that the tenth class of the Leadership Academy is underway, demonstrating the continued growth and success of the program. Mr. Ortbals noted that this year’s class had its largest pool of applicants and that pool produced the largest Leadership Academy class to date – 15 members. He also noted that for the first time two members of this class were sponsored by BAMSL. He indicated that the Leadership Academy hopes that this type of sponsorship continues in the future as it serves to continue and further strengthen the positive relationship among bar associations. He reported that this year’s class continues to be diverse in terms of race, gender and ethnicity and that it has also expanded in geographic diversity with class members from Springfield, Audrain County and Hillsboro.
He thanked the Board of Governors for their support of the Leadership Academy program and thanked those board members who participated in the meeting to kick off this Leadership Academy’s year. He reported that the Leadership Academy plans include meeting approximately six times during the bar year, being actively involved in bar committees and activities and developing and completing the annual service project.
B.Special Committee to Assist Lawyers in a Changing Economy
Ms. Lynn Ann Vogel reported that this special committee met one time since the meeting of the Board of Governors in July, and she called attention to a committee report provided in the board meeting materials. She reported that approximately 1,800 members have joined the MoBarCircle and approximately 28 new job openings have been posted. She noted that employment information is a key component of this new resource and encouraged individual board members to direct lawyers to this resource for job openings whenever possible. She also encouraged the Board to utilize MoBarCircle for communication purposes, indicating that this new vehicle could, in many cases, be superior to the current listservs.
Ms. Vogel reported that the committee has been asked to look into a potential trend involving the loss of available lines of credit for small and medium sized firms. Ms. Vogel reported that the committee will also continue to meet and address other economic issues as needs arise.
C.Young Lawyers Section Council
Mr. John Gunn reported that the YLS Executive Council met in July to discuss long range planning and goals. The goals established by the YLS Executive Council included:
(1) Continuing to foster cooperation with the Board of Governors and continuing its service to the current and future members of the YLS.
(2) Increasing the frequency of YLS meetings across the state, in cooperation with regional bar associations.
(3) Continuing prioritization of Section budgetary oversight and responsibility.
(4) Establishing a new Special Task Force on Education and Advocacy related to the Non-Partisan Court Plan.
(5) Establishing YLS liaisons for each of The Missouri Bar substantive committees.
He also reported that the YLS Special Needs Task Force has been established as a standing committee of the Section. He then reminded the Board about the YLS-hosted Annual Meeting event at McGurk’s Irish Pub following the Best of Missouri reception.
D.Executive Committee
(1) The Missouri Non-Partisan Court Plan
Mr. Tom Burke provided an update on new efforts to change Missouri’s Non-Partisan Court Plan. He reported that new legislative efforts are anticipated in the upcoming 2010 session.
He also reported that an initiative petition to change the Non-Partisan Court Plan has been filed with the Secretary of State’s office for the November 2010 ballot. He further reported that two lawsuits have been filed in response to that initiative petition, one addressing substantive issues related to the petition and a second challenging the fiscal component of the initiative.
He directed attention to the variety of Missouri Bar efforts being used to educate the public and to provide support for the Non-Partisan Court Plan including increased public information, coordination of information about the current process and coordination with the wide range of groups and civic organizations that support the Non-Partisan process. He played for the Board the PSAs that have received significant radio and television air time across the state during the past year. And he indicated that challenges to the Non-Partisan Court Plan will continue to be monitored closely and the board will be kept advised.
(2) Lawyer Advertising
Mr. Tom Burke reported on the process implemented following the July meeting of the Board of Governors related to the rule changes proposed by the Special Committee on Lawyer Advertising. He noted that several aspirational recommendations were approved at the July meeting including public outreach and education on the selection of a lawyer, educating lawyers about the rules and responsibilities governing lawyer advertising, and enhancing professionalism related to lawyer advertising.
He briefly discussed the purpose of the summary survey and letter related to the proposed lawyer advertising changes that was prepared and sent to members of the Board of Governors from the Executive Committee following the July meeting. Mr. Burke, Mr. Walther and Mr. Johnston discussed the intent of the survey and the process initiated by the Executive Committee, clarifying that the process was intended to focus debate and provide a method for the Board to establish the amount of the time to allocate for further consideration of any of the individual lawyer advertising proposals which failed when voted on as a whole during the July meeting.
Mr. H. A. “Skip” Walther also noted that the Board’s vote to recommend lawyer advertising rule changes proposed in 2006 were approved unanimously. He pointed out that significant debate and disagreement appears to exist within the board as to the propriety of many of the currently proposed rules. And he suggested that the board consider whether this body should recommend rule changes to the Supreme Court of Missouri when such division and lack of consensus exists.
It was moved and seconded that the Board recommend for approval to the Supreme Court of Missouri the adoption of the proposed preamble and that thereafter the Board take up each of the proposals for either a new rule change or comment change separately in the order that they were presented in the final report.
After some discussion about the level of consensus regarding reconsideration, specific concerns about the language of the preamble and whether the Board should act on each proposal separately, a friendly amendment was made and accepted to remove the second part of the original motion and vote only on a recommendation to adopt the preamble. The motion as amended to adopt the preamble only failed by a vote of 16 in favor and 22 opposed.
It was moved and seconded to adopt proposed new Rule 4-7.1 adding to the list of misleading communications the use of a testimonial or endorsement of a lawyer by a celebrity unless the celebrity is a client or former client. The motion failed.
It was suggested and accepted that the subsequent motions can refer to the number of the proposed rule change as listed on the “Rule Chart for the Board” summary circulated to the Board.
It was moved and seconded to adopt the proposed rule change summarized as item #3 of the “Rule Chart for the Board” summary. The motion passed.
It was moved and seconded to adopt the proposed rule change summarized as item #4 of the “Rule Chart for the Board” summary. The motion passed.
It was moved and seconded to adopt the proposed rule change summarized as item #5 of the “Rule Chart for the Board” summary. The motion passed.
It was moved and seconded to adopt the proposed rule change summarized as item #6 of the “Rule Chart for the Board” summary. The motion failed.
It was moved and seconded to adopt the proposed rule change summarized as item #7 of the “Rule Chart for the Board” summary. After additional discussion, a successful motion was made and seconded to call the question; the motion to adopt item # 7 failed by a vote of 17 in favor and 21 opposed.
It was moved and seconded to adopt the proposed rule change summarized as item #8 of the “Rule Chart for the Board” summary. After discussion regarding the definition of “conspicuous” and use of the ordinary person standard, it was moved and seconded to substitute the language proposed by the OCDC for the language in the original rule change proposal. After a motion and second to call the question on this second motion passed, the motion to substitute the language proposed by the OCDC for the language in the original proposal failed.
After a motion and second to call the question as to the original proposal passed, the motion to adopt the originally proposed rule change summarized as item #8 of the “Rule Chart for the Board” summary failed by a vote of 11 in favor and 27 opposed.
After further explanation of the OCDC alternative language using an “ordinary person” standard, it was moved and seconded to adopt the proposed alternative language for this rule change and a friendly amendment was accepted to adopt the comments along with this version of the proposed change. The motion passed.
It was moved and seconded to adopt the proposed rule changes summarized as items #11, 14 and 18 of the “Rule Chart for the Board” summary. A friendly amendment to the substance of #11 was made and accepted, adding a safe harbor provision to the proposed change. The friendly amendment reads: “The provisions of Rule 4-7.2 shall not apply to law firms or lawyers who promote, support or publicize through advertising that substantially and predominantly features any of the following: (1) Legal Services Corporation; (2) community or other non-profit organization; (3) recognized community events and/or celebrations; (4) institutions, individuals or entities other than themselves.” The motion to adopt #11, as amended, and #14 and #18 passed.
It was moved and seconded to reject the remaining proposed rule changes summarized as items #9, #10, #12, #15, #16, #17 of the “Rule Chart for the Board” summary. The motion failed.
It was moved and seconded to adopt the proposed rule change summarized as item #9 of the “Rule Chart for the Board” summary. The motion passed.
It was moved and seconded to adopt the proposed rule change summarized as item #10 of the “Rule Chart for the Board” summary. The motion failed by a vote of 17 in favor and 21 opposed.
It was moved and seconded to adopt the proposed rule change summarized as item #12, #15, #16 of the “Rule Chart for the Board” summary. After further discussion regarding whether the Chief Disciplinary Counsel already has this authority under the existing rules, the motion to adopt items #12, #15, #16 failed.
It was moved and seconded to adopt the proposed rule change summarized as item #13 of the “Rule Chart for the Board” summary. After some discussion about the likelihood that the public will file complaints in response to solicitation letters that are technically in full compliance with the rules, placing OCDC and the bar in a negative light, the motion failed.
It was moved and seconded to adopt the proposed rule change summarized as item #17 of the “Rule Chart for the Board” summary. The motion failed.
6. Officers Report:
A.President’s Report
Mr. Tom Burke thanked members of the Board of Governors for their service to the Bar and the profession. He commended the Board on all of its work on behalf of the legal profession, and he thanked the Board for allowing him the privilege of serving as President.
B.President- Elect’s Report
Mr. H. A. “Skip” Walther reported on his agenda for the upcoming bar year. He noted that the agenda for any given bar year is often driven by external actions, events and circumstances and he anticipates that this will be the case in 2010. He reported that his plans for 2009-2010 bar year include a Board review and, if necessary, update of the long range plan. He noted that a long range plan for The Missouri Bar had been completed in 1995. He reported that the goal would be to conduct a review before the mid-year meeting of the Board of Governors, perhaps at the meeting in November, and to be in a position to adopt an updated plan at the board meeting in January.
He reported that the efforts to change the Missouri Plan will continue to be a major challenge in 2010, citing both the initiative petition and anticipated legislative efforts. He noted that the Missouri Plan continues to enjoy broad support across the state and across all political spectrums. He encouraged the Board to claim the debate related to the preservation of the Missouri Plan by acting as ambassadors and educating the public about the way the process selects judges and why it is important to reject efforts to politicize the process.
He reported that the mid-year meeting will be in Kansas City at the InterContinental Hotel, January 21 -23. He reported that the format of the meeting will not include a CLE component. It will be a meeting of the Board of Governors. He indicated that in addition to the long range plan and issues related to the Non-Partisan Court Plan, he would like to spend time discussing executive transition, noting the approaching retirement of Executive Director Keith Birkes
C.Vice-President’s Report
Mr. John Johnston commended the Board for its commitment to the value and importance of open and vigorous debate in order to air all sides of important issues as part of the decision making process. And he thanked the Board for the honor of serving as an officer.
D.Executive Director’s Report
Mr. Keith Birkes briefly called attention to the programs, events and activities associated with the Annual Meeting. He commended the Annual Meeting Planning Committee for all their work. He encouraged the Board members to be involved and engaged in as many activities and programs of the meeting as possible, and noted that it appears the meeting will approach record attendance. He further reported that the next meeting of the Board of Governors will be on November 20 at the Fall Committee Meetings in Jefferson City.

7. Acknowledgement of Retiring Board Members.
Mr. Tom Burke offered comments and presented plaques honoring the retiring Board members for their service on the Board of Governors. The following Board members were recognized:
William R. Bay
Tracy H. Gilroy
William J. Lasley
Mark H. Levison
There being no further business, the meeting was adjourned.
Respectfully submitted,
Keith A. Birkes, Secretary