Board Minutes - November 20, 2009

Jefferson City Capital Plaza Hotel

Members Present:
H.A. Skip Walther, President
John Johnston, President-Elect
Lynn Ann Vogel, Vice-President
Thomas M. Burke, Past President
Keith A. Birkes, Secretary

Erik Bergmanis
Stephen R. Bough
Suzanne B. Bradley
P. John Brady
Hon. Richard Bresnahan
Thomas J. Casey
Mark W. Comley
Hon. Charles D. Curless
Dana Tippin Cutler
Brian Francka
Carol Chazen Friedman
Alan B. Gallas
John R. Gunn
Richard F. Halliburton
Paul G. Henry
Vincent F. Igoe, Jr.
Jennifer M. Joyce
Marie A. Kenyon
Hon. John F. Kintz
Neil F. Maune, Jr.
Karen King Mitchell
Max E. Mitchell
Nancy R. Mogab
Hon. Mark H. Neill
Douglass F. Noland
Megan E. Phillips
Joseph P. Rice, III
Brett W. Roubal
Deanna K. Scott
Allan D. Seidel
Patricia A. Sexton
Reuben Shelton
Wallace Squibb
Patrick B. Starke
Raymond E. Williams
Eric J. Wulff

Members by Telephone:
Genevieve M. Frank
W. Edward Reeves
Walter R. Simpson

Members Absent:
Edward J. Hershewe
Hon. David L. Vincent

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

1. Minutes:
It was moved and seconded that the minutes of the meetings of the Board of Governors of September 23 and of the Executive Committee of September 23 be approved. The motion was approved.
2. Legislation:
Ms. Catherine Barrie directed attention to a summary report showing the status of previously approved Missouri Bar Committee-Drafted legislation, including the status report on the recruitment of legislative sponsors. Ms. Barrie also reported that in addition to the sponsors identified in the report, Sen. Jolie Justus has been asked to sponsor the Uniform Interstate Family Support Act.
A. Parenting Coordination
Family Law Section Chair Larry Swall and Judge Douglas Beach of the 21st Judicial Circuit Court reported on a proposed measure to amend 452.435 through 452.438 RSMo. The legislation would 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 in the implementation of a court ordered parenting plan.
Mr. Swall reported that the legislation is intended to be a post judgment dispute resolution process that can be used with high conflict families. The goal would be to settle disputes in a timely manner, reduce child related conflicts, and better protect children from the impact of such conflicts. He noted that the legislation makes this an option for the court and parties involved, but it does not make the appointment of the parenting coordinator mandatory.
Judge Beach further reported on the use of parenting coordinators in St. Louis County, noting that the option is offered as a voluntary arbitration process in the 21st Circuit. He provided an example of the conflict issues that parenting coordination typically involves, describing many of the disputes as non-legal issues. He also noted that the parties often have mental health issues as well, which contributes to the conflict situation.
Questions and concerns were raised regarding the drafted language of the legislation, including potential implications related to scope of immunity that would be provided parenting coordinators; the scope of authority that parenting coordinators would be given to interpret and revise court judgments; the exemption of mental health professionals from the unauthorized practice of law related to their duties as parenting coordinators; the definition of what constitutes a “minor departure” to a court judgment; the potential cost to the parties when a parenting coordinator is ordered by a court; and procedures involved in protecting a party from having the parenting coordinator expense thrust upon them.
Other issues were raised related to the value of adding another layer to a system that already includes options and resources such as mandatory parenting classes, MARCH mediation, CASA, GALs and access motions. A recommendation was also made that the legislation should include an “opt in” provision for circuits that do not want to provide such a program.
It was moved and seconded to approve the legislation. A friendly amendment was accepted to add language to paragraph 9 (1) line 96 of the proposal to amend 452.436 RSMo, inserting after the word “liability” and before the phrase “in any claim,” the following: “any person or child subject to the order for parenting coordination.” The motion as amended failed.
B. Commercial Law Committee
Mr. Alan Gallas reported that the Commercial Law Committee is proposing a measure to clean up unintended consequences affecting the notice of garnishment under 525.233 RSMo. He explained that the unintended consequences resulted after the passage of HB 481 last session, enacting 509.520 RSMo. The new section – 509.520 RSMo – prohibits any pleadings, attachments or exhibits filed with the court from including Social Security numbers, credit card numbers and financial account numbers.
However, the existing 525.233 RSMo. still requires the notice of garnishment to include the full Social Security Number/federal taxpayer identification number. If the Social Security Number/federal taxpayer identification number is not in the garnishment request, the creditor has no remedy to enforce the garnishment. The proposed amendment to 525.233 RSMo would make use of SSN/federal identification numbers consistent with the previously passed legislation, by requiring that only the last four digits of the number be listed.
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. Appointments:
A. Current Appointments
(1) Client Security Fund Committee
Mr. Keith Birkes reported that the terms of two members of this committee – Lois Zerrer and Max Mitchell – are expiring and under the current rules neither is eligible for reappointment. The current rules only allow for one five-year term on this committee. Mr. Birkes further reported that Mr. Mitchell has expressed an interest in being reappointed, and the committee recommends that the Board of Governors amend the current rule, removing the one five-year term limitation on appointments, so committee members can serve more than one term. It was moved and seconded to remove the one five-year term limitation for members of the Client Security Fund Committee. The motion was approved.
It was moved and seconded to reappoint Mr. Mitchell to a second term and to appoint Mr. Kerry Davis to fill the other vacancy on the committee. The motion was approved.
(2) The Press-Bar Commission
Mr. Birkes reported that John Black’s term on the Press-Bar Commission is expiring and he is eligible for reappointment. It was moved and seconded to reappoint Mr. Black for another term. The motion was approved.
(3) Complaint Resolution Committee
Mr. Birkes reported that the Honorable Gary Lynch’s second term on the Complaint Resolution Committee is expiring and he is not eligible for reappointment. It was moved and seconded that Mr. Jim Condry be appointed to the committee. The motion was approved.
B. January Appointments
It was reported that there are no appointments for the January meeting.
4. Public Defender Status Report:
Mr. Doug Copeland reported on the Assessment of the Missouri Public Defender System final report prepared by the Spangenberg Group and The Center for Justice, Law and Society at George Mason University. Mr. Copeland provided an historical overview of efforts to address the issues facing Missouri’s Public Defender System from 2005 to present. He gave a chronology of efforts by The Missouri Bar, which began with the establishment of a Special Task Force in 2005 and the contracting for an independent analysis of the Missouri Public Defender System by the Spangenberg Group.
He offered a review of the findings of that report, which found serious problems in areas that included funding, employee turnover, caseload management, management supervision, and adequate support staff. He outlined subsequent efforts to provide solutions to excessive caseload issues by rule, first unsuccessfully through a Supreme Court of Missouri rule and later through a Missouri Public Defender System rule that was subsequently found void by the Missouri Court of Appeals. Mr. Copeland also reviewed the legislative actions related to MSPD matters that included an Interim Committee on the MSPD established by the Missouri Senate, the largely unsuccessful efforts to win increased funding for the system through the Missouri Legislature, the successful passing of SB 37 codifying the MSPD caseload rule and its subsequent veto by the governor. He referenced outside sources of caseload standards, all of which are currently exceeded by the MSPD. He noted ABA ethics opinions and criminal defense standards that MSPD cannot currently meet. He reported that the 2009 Spangenberg Report findings conclude that the MSPD is facing an overwhelming caseload crisis, one of the worst of its kind in the nation. And that due to the level of crisis, the group was unable to establish a caseload standard specific to Missouri.
Ms. Jennifer Joyce acknowledged and commended Doug Copeland and the Special Task Force for the work they have done related to the issues facing the MSPD system. She called attention to a letter from MAPA that was provided to the Board of Governors and stated the position of prosecutors regarding issues facing MSPD and the entire criminal justice system. Ms. Joyce reported that virtually all of the findings affecting the MSPD such as turnover, salaries, support staff, resources apply to Missouri’s prosecutors as well. She reported that the prosecutors advocate addressing the problems facing the criminal justice system in a holistic way, focusing system-wide. She noted that prosecutors do not see in their districts the same level of crisis within the MSPD that was identified in the Spangenberg Group final report, but the prosecutors do believe there is plenty of cause for concern. She reported that the prosecutors believe there is time to analyze and study these issues in a holistic, meaningful way to come up with solutions that address the issues facing all components of the system and that prosecutors look forward to working with the Bar on these issues.
Mr. Copeland also discussed the cost of the Spangenberg Group study and the adequacy of the work performed, including the Group’s inability to establish a Missouri specific caseload standard – a key objective of the project. Doug Copeland also reported that he is discussing the final fee for the study with the Spangenberg Group in light of some concerns related to the final results, noting that only part of the $70,000 fee - $50,000 – has been paid to date. It was also noted that the study was funded by four foundations: The Missouri Bar Foundation, KCMBA Foundation, BAMSL Foundation and IOLTA. No Missouri Bar funds were used.
5. Committee Reports:
A. Client Security Fund Report
Mr. Chris Janku reported that the Client Security Fund Committee met on October 23, 2010 to review claims. He reported that the committee is recommending the payment of 15 claims totaling $81,870.17; the denial of 8 claims; and the dismissal of one claim at the request of the client. He noted that 9 claims totaling $6,050.00 had been approved at the July 17, 2009 meeting of the Board of Governors. It was moved and seconded to approve the recommendation of the committee. The motion was approved.
B. Special Committee to Assist Lawyers in a Changing Economy
Ms. Lynn Vogel and Mr. Raymond Williams reported on a new Law Firm Merchant Account credit card processing member benefit for The Missouri Bar. The new benefit has been negotiated with Affiniscape Merchant Solutions to provide members with a cost effective and ethically compliant option for accepting credit card payments from clients. The company and program has been recommended by 50 state and local bar associations. It was also noted that member benefit agreements of this type typically return a percentage of revenue back to the organization as a reward for access to the membership. Under the agreement negotiated, any such revenue sharing will be returned directly to the individual lawyers and law firms in the form of further discounts, rather than to The Missouri Bar. Ms. Vogel and Mr. Williams commended Linda Oligschlaeger for her work in identifying this benefit opportunity and negotiating a favorable agreement.
C. Solo and Small Firm Committee
Mr. Paul Henry presented a request from the Solo and Small Firm Committee related to the online publication of Missouri approved jury instructions (MAI), free to Missouri lawyers. The committee maintains that lawyers are required to use the instructions and, therefore, they should be made available without cost. Questions were raised as to whether West Publishing has an agreement with the Supreme Court of Missouri to publish the instructions, whether the instructions are or could be made available through Fastcase, and whether online publication should restrict access only to lawyers. Concerns were raised about how effective the publication of the instructions would be without the supporting materials that help lawyers properly use them.
It was moved and seconded that the Board of Governors make a request that the Supreme Court of Missouri through whatever means they deem appropriate make fully and freely available the complete set of Missouri approved instructions both civil and criminal with the preferred method of publication being the Internet. The motion was approved.
D. Committee on Minority Issues
Ms. Dana Tippin Cutler presented a request from the Committee on Minority Issues for funding to hold a one-day retreat this spring in Columbia for members of that committee and for representatives of the minority bars within the state. The agenda for the retreat will focus on the development of a diversity website. It was decided that funding for such a retreat, assuming it is modest in cost, would be absorbed out of the 2010 general committee budget, making it unnecessary to allocate additional funding.
E. Delivery of Legal Services
Mr. Richard Halliburton requested that the Board take action on a motion passed by the Delivery of Legal Services Committee that calls for the development of a website which would serve as a key component in a statewide effort to expand pro bono services and the coordination of pro bono needs and services within the state. He reported that the motion was developed by a DLS subcommittee and approved by the full DLS committee on a telephone conference call held on November 10.
He further reported that the subcommittee, chaired by Deanna Scott, reviewed proposed by the Supreme Court of Missouri’s Committee on Access to Justice in Family Courts, as well as ideas generated by other sources, including members the subcommittee, and other bar associations. Mr. Halliburton also reported that there is a $10,000 budget item in the 2010 Missouri Bar Pro Bono budget for this project, but it is anticipated that the project will be completed at a much lower cost.
Questions were raised as to whether MoBarCircle could be used to accomplish these objectives in lieu of developing a separate website. It was agreed that the wording of the subcommittee’s motion would be changed removing the word “website” and replacing it with “web presence,” allowing for other options such as MoBarCircle to be considered. It was also agreed that the Executive Committee would review, monitor and implement the progress of this project, so it can continue to move forward without delay.
The motion as revised follows:
The Delivery of Legal Services Committee hereby endorses the creation of a MO Bar pro bono recruiting web presence to be established and maintained by Mo Bar staff. The web presence would simplify the process of volunteering to provide pro bono legal assistance by listing available pro bono opportunities for every county in the state and allowing attorneys to volunteer to do pro bono work for one or more specific pro bono service providers of their choice in their area. Content for the web presence would be provided by pro bono service providers.
DLS's Pro Bono Task Force would be charged with monitoring the content of the web presence to make sure that it is appropriate. The DLS Committee will establish objective criteria for allowing pro bono service providers to post information about pro bono opportunities on the web presence.
Further notes: The site would be similar to a pro bono recruiting website established by the Santa Clara Bar Association in California. The Kansas City Metropolitan Bar Assn (KCMBA) is working on the creation of a similar website and is willing to have its website linked to the MO Bar's site. A link to the Santa Clara website is provided here: http://www.probonomatch.org/. The motion as revised was approved.
6. Finances:
Mr. Erik Bergmanis reported that the Finance Committee and the Executive Committee jointly recommend the adoption of the proposed 2010 budget. He noted that the 2010 budget anticipates a .1% decrease in revenue, a 2.8% increase in expenditures and provides for a deficit spending level as anticipated. He reported that budget includes a 2.5% increase for bar staff salaries, noting that the annualized inflation rate is approximately 3%.
Mr. Bergmanis noted that the funds allocated for public education program in 2009 were not spent and that the updated projection of income/expenses for 2009 anticipates a near zero deficit.
Mr. Bergmanis also reported that the technology expectations and needs in providing services to members continues to grow and that concerns have been raised as to whether the Bar is understaffed in this area. He reported a need to add staff in the IT area is anticipated for 2011. After a brief executive session to discuss staff salary issues, it was moved and seconded that the proposed 2010 budget be approved. The motion was approved.
7. Officer’s Report:
A. Executive Director’s Report
Mr. Keith Birkes called attention to the 2009 Economic Survey and noted that a copy of the report was made available at this meeting. He further reported that Board members can anticipate receiving materials and information in preparation of the strategic planning session that will part of the January meeting agenda.
B. Vice-President Report
Ms. Lynn Ann Vogel reported that the 2009 Annual Meeting and Judicial Conference of The Missouri Bar received high marks from attendees in the post- meeting evaluation. She reported that the Ballpark Hilton also received high marks as a venue for the meeting. She noted that the 2012 Annual Meeting will once again be held at the Ballpark Hilton, and encouraged members of the board to express any feedback or comments.
C. President Elect’s Report
Mr. John Johnston reported on plans for a new broad-based public education initiative. He noted that the initiative will focus on areas such as the Non- Partisan Court Plan and the importance of an independent judiciary, as well as Missouri’s criminal justice system. He commented that it is the duty as officers of the court to help the public understand these important systems and concepts, so Missouri’s citizens will be in a position to make informed decisions when they are confronted with information from groups advocating for one side of an issue.
Mr. Johnston reported that he plans to send a letter to a wide range of leaders within the legal profession across the state, asking each lawyer to give one 15 - 20 minute speech on a designated subject. He indicated that by recruiting a large pool, each presenter would only be asked to do a small part in the effort. He indicated that those who participate would be supported with concise resource materials intended to make the task easy. In addition, there is a possibility of webinar training. He reported that the speakers would begin with presentations on the Missouri Plan in late summer with the objective of having a speech presented in every county in Missouri in 2010. He also indicated that each member of the board would be asked to participate along with leaders from local and specialty bars, courts and organizations from across the state.
D. President’s Report
(1) Plans for January Meeting of the Board of Governors
Mr. Skip Walther reported that the January board meeting is scheduled for January 21 -23 in Kansas City. He reported that a major focus of the meeting will focus on a review and update of the 1995 Long-Range Plan of The Missouri Bar. This session will also focus on the succession of Executive Director Keith Birkes, who is scheduled to retire in 2012.
(2) Review of The Missouri Bar Long-Range Plan
Mr. Walther reported that he anticipates utilizing a facilitator to assist in guiding the board through the review and updating process. He plans to assign board members to examine different parts of the plan. He indicated that he would make these assignments before the meeting in January and asked board members to inform him of any preferences regarding such assignments. He asked all board members to review the entire plan in advance of the meeting. He noted that the 1995 Long- Range Plan has been a very good guiding document, well-written and still timely and pertinent, and because of this fact, he indicated the review and updating process may be easier than expected.
(3) The Missouri Non-Partisan Court Plan
Mr. Walther reported that the issues surrounding current and future attacks on Missouri’s Non-Partisan Court Plan are difficult to define, noting that two initiative petitions have been filed with the Missouri Secretary of State and that legislative efforts and initiatives are anticipated in 2010. He noted the reports that the backers of the initiative petitions have begun collecting signatures. He also reported that lawsuits are pending challenging both initiatives and indicated that rulings in these cases would have an effect on the validity of the signatures collected. Mr. Walther reported that the Bar has been working with other groups to formulate appropriate responses to both the initiatives and potential legislative efforts. He also indicated that the Bar has funded significant efforts to educate the public regarding the importance of an independent judiciary, including producing institutional ads that focus on this topic.
There being no further business, the meeting was adjourned.
Respectfully submitted,
Keith A. Birkes, Secretary