Board Minutes - September 29, 2010

Columbia Holiday Inn Select Executive Center

Members present:
H. A. “Skip” Walther, President
John S. Johnston, President-Elect
Lynn Whaley 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
Mark W. Comley
Hon. Charles Curless
Brian Francka
Carol Chazen Friedman
Genevieve M. Frank
Alan B. Gallas
John R. Gunn
Richard F. Halliburton
Paul G. Henry
Jennifer M. Joyce
Marie A. Kenyon
Hon. John F. Kintz
Neil F. Maune, Jr.
Hon. Karen King 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
Hon. David L. Vincent
Raymond E. Williams
Eric J. Wulff

Members by Telephone:
Dana Tippin Cutler
Edward J. Hershewe
Vincent F. Igoe, Jr.
Max E. Mitchell
Walter R. Simpson

Members absent:
Thomas J. Casey
W. Edward Reeves

Also present:
Catherine Barrie
Lucas Boling
Jim Brady
Kent Hopper
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 July 16 and of the Executive Committee meetings of July 15, August 13 and August 25 be approved. The motion was approved.
2. Finances:
Mr. Erik Bergmanis reviewed the year-to-date financial status of The Missouri Bar, reporting that the financial position was sound. He further reported that the CLE Department
has received about 75 percent of projected annual revenue to date. He noted that CLE is projected to attain at the least 90 percent of projected revenue, but reaching 100 percent may be difficult in the bad economy.
3. Legislation:
Ms. Catherine Barrie reported that several legislative proposals had been received from Missouri Bar committees/sections for the consideration and approval of the Board of Governors as bar-sponsored bills in the upcoming 2011 Missouri Legislative session.  She further reported that additional legislative proposals are anticipated from the Commercial Law Committee and the Delivery of Legal Services Committee in November.
A. Family Law Section
Mr. Larry Swall reported on four 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 repeal 210.844 RSMo, as well as fifty-seven other sections between 454.850 and 454.999 RSMo, and would enact in lieu thereof seventy-eight new sections relating to the Uniform Interstate Family Support Act as amended in 2008. 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 noted that this draft legislation, renamed the “Missouri Premarital Agreement Act,” includes provisions to protect parties who have agreed to the terms under conditions that were not found to be arm’s length negotiations and that a severability provision has been newly added. 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) Family Services Justice Fund
Mr. Swall reported that this legislation would amend 488.2300, RSMo,
allowing counties or circuit courts without a family court to establish a Family Services and Justice Fund to provide enhanced services and aid with the operation of domestic relations and family services.  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 failed.
(4) Parenting Coordination
Mr. Swall reported that this legislation would amend 452.435 through 452.438 RSMo, providing 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. This version includes a change that the parties must agree to the appointment of a parenting coordinator and in no way should the law be construed to require a judge to make such an appointment.
Judge Douglas Beach and Carla Holste, past chair of the Family Law Section, also spoke in favor of the proposed legislation.
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 received a majority of votes in favor, but did not receive the requisite two-thirds needed for approval. The motion failed. It was moved and seconded that the Board oppose the proposed Parenting Coordinator legislation. The motion failed. 
B. Probate and Trust Law Committee
Mr. Scott Martinsen reported on nine legislative proposals from the Probate & Trust Committee.
(1) Representation by Fiduciaries and Parents
Mr. Martinsen reported that this legislation amends 456.3-301(2), RSMo, clarifying when the consent of a person who is represented by another is binding upon that person so represented. 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) Trust Decanting
Mr. Martinsen reported that this legislation would create a new act – 456.4-418 or 456.4-419, RSMo – added to the MUTC to give flexibility to trustees of discretionary trusts to appoint assets of a first trust into a second trust thereby, amending the instrument or creating a new instrument without having a court hearing. 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) Spendthrift Provisions and Trusts and Creditor Claims Against Settlor
Mr. Martinsen reported that this legislation amends 456.5-502 and 505, RSMo, to provide that protections against creditors in Section 505 apply, even if the settlor retains a testamentary power of appointment. 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) Duty to Inform and Report
Mr. Martinsen reported that this legislation amends 456.8-813, RSMo, inserting language in Subsection 1 of Section 2 with regard to furnishing a copy of the trust instrument to a beneficiary, allowing the trustee to satisfy the provision by supplying a copy of only the relevant portions of the trust instrument, if the beneficiary’s interest in a trust is less than the lesser of $50,000 or five percent of the value of the trust assets and to amend the period in which a trustee has a duty to inform qualified beneficiaries from the current 60 days to 120 days. 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 failed.
(5) Unitrust Accounting
Mr. Martinsen reported that this legislation amends 469.411, RSMo, Subsection 1 of Section 1, making technical and typographical reference corrections to the existing statute. 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.
(5) Retirement Plan Payments to Marital Deduction Trusts
Mr. Martinsen reported that the legislation amends 469.437, RSMo, with respect to a trust that qualifies for a marital deduction under IRC 2056(b)(7) or 2056(b)(5) using language endorsed by the National Conference of Commissioners on Uniform State Law. 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.
(6) Adjustment of Receipts of Income and Principal
Mr. Martinsen reported that the legislation amends 469.459 RSMo It is designed to address some technical issues that can arise regarding the payment of a trust’s receipts from taxable income and from principal. 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.
(7) Effect of Insurance Coverage on Transfer of Real Property into Intervivos Trust
Mr. Martinsen reported that this legislation inserts a new section into the MUTC that a transfer of real property by deed into an intervivos trust would not affect the title insurance covering the real property if the settlor remains a beneficiary of such trust. 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.
(8) Power of Attorney
Mr. Martinsen reported that a corrected version of proposed legislation to amend 404.710 RSMo will be circulated to the Legislative Committee and introduced for action of the Board in November.
4. Appointments:
A. Current Appointments
(1) Trustees of The Missouri Bar
Mr. H. A. “Skip” Walther reported that Carla Fields Johnson’s first term as a Trustee is expiring and she is eligible for reappointment. It was moved and seconded that Ms. Johnson be appointed for a second term. The motion was approved.
(2) Legal Services of Southern Missouri Board Appointments
Mr. H.A. “Skip” Walther reported that Legal Services of Southern Missouri (LSSM) recommends that The Missouri Bar reappointment thirteen current board members and appointment of one new member to the LSSM board as required under Legal Services Corporation regulations. Individuals recommended for reappointment: Newt C. Brill, James T. Crump, Craig R. Heidemann, Joseph L. Johnson, James F. McLeod, Kenneth C. Mcmanaman, Terry V. McVey, William C. Morgan, Edward M. Pultz, Jerry L. Redfern, Frank B. Schweitzer, Randall R. Sutter, Matthew F. Trokey. Rebecca Burke was recommended for new appointment. It was moved and seconded to appoint the 14 individuals recommended.  The motion was approved.
B. November Appointments
(1) Client Security Fund Committee
Mr. Scott Robbins’ first term is expiring and he will be eligible for reappointment in November. The other members of the committee are: Kerry Davis, Matthew Devoti, Nancy Gonzalez, Julia Grus, and Max Mitchell.
(2) Missouri Press-Bar Commission
Mr. Mark Sableman’s term as a member is expiring and he is eligible for reappointment in November. The other Missouri Bar appointees are John Black and Honorable Jerry Venters. 
5. Committee Reports:
A. Client Security Fund Committee
Mr. Chris Janku reported that the Client Security Fund Committee met on September 1 and recommends payment of 17 claims for a total of $18,570, the denial of four claims, dismissal of two claims and the withdraw of one claim, withdrawn at the request of the client.
Mr. Janku noted that claims of $2,500 or less approved at this meeting and at the May 14 Board meeting total $47,820, leaving a Fund balance of $384,089.84. It was moved and seconded to approve the recommendations of the committee. The motion was approved. 
B. Young Lawyers Section Council
Mr. John Gunn reported that the YLS Council met in July. At that meeting, the YLS heard presentations from young lawyers representing nine bar associations regarding activities and programs conducted by young lawyers in their organizations. In addition, the YLS heard from Millie Aulbur, Director of Citizenship Education, about Missouri Bar civic-education related programs developed and coordinated throughout the state, as well as possible ways that the YLS can become actively involved with these programs.  He further reported on the following activities of the YLS subsequent to the July meeting. These activities include:
(1) YLS elections, noting that a significant number of young lawyers ran in recent elections, perhaps more than ever, and reporting that the YLS will enjoy a full council when they meet during this Annual Meeting.
(2) Participation in the fall enrollment ceremonies last week.
(3) Taking part in Liberty Day, helping to educate fifth graders about the government process.
(4) Holding meetings with local bar associations.
(5) Meeting both Thursday and Friday at the Annual Meeting.
(6) Conducting a “Peanut Butter” food drive benefiting Liberty Bell Awardee – Central Missouri Food Bank.
(7) Holding a post-Best of Missouri event at Quintons.
(8) Presenting multiple YLS awards at the Annual Meeting Awards Banquet.
Mr. Gunn also introduced his successor as YLS Board Liaison, Ms. Lauren Tucker McCubbin. 
C. Executive Committee
No report.
6. Officers Report:
A. President’s Report
Mr. H. A. “Skip” Walther provided a brief report noting the establishment of a permanent Criminal Justice Council and ongoing work of that Council to address the issues and identify solutions to the problems facing the criminal justice system, including funding of the Public Defender System. He noted the completion of a new Long-Range Plan for The Missouri Bar and the success in fending off efforts to place an initiative to eliminate the Non-Partisan Court Plan on the November ballot. 
B. President- Elect’s Report
No report.
C. Vice-President’s Report
Ms. Lynn Ann Vogel reported that the Pro Bono website was in its final phases of development and is almost ready to launch. She reported that the Board will be informed of the launch with a link to access the site via email.  
D. Executive Director’s Report
Mr. Keith Birkes reported that a substantial number of applications were received for the Deputy Executive Director position. He further reported that the applications would be distributed to the members of the current Executive Committee, the new Executive Committee and the additional at-large members of the selection committee – Doreen Dodson, John Gunn and Dana Tippin Cutler. He noted that this group is expected to have some recommendations for the Board at the November meeting.
7. Acknowledgement of Retiring Board Members:
Mr.  H. A. “Skip” Walther offered comments and presented plaques honoring the retiring Board Members for their service on the Board of Governors. The following Board members were recognized:
Thomas M. Burke
Alan B. Gallas
Thomas J. Casey
John R. Gunn
Paul G. Henry
Megan E. Phillips
W. Edward Reeves
Patricia A. Sexton
Honorable David L. Vincent
8. Welcome and Introduction of New Board Members:
Mr. H.A. “Skip” Walther introduced and welcomed newly elected members of the  Board.
Bevy A. Beimdiek
Robert J. Buckley
Dennis J. Capriglione
Joel R. Elmer
John W. Grimm
James F. Kanatzar
J. B. Lasater
Mark H. Levison
9. Adjournment:
There being no further business, the meeting was adjourned.
Respectfully submitted,
Keith A. Birkes, Secretary