Board Minutes - November 19, 2010

Capital Plaza Hotel, Jefferson City, Missouri

Members present:
John Johnston, President
Lynn Ann Vogel, President-Elect
Patrick B. Starke, Vice-President
H. A. “Skip Walther, Past President
Keith A. Birkes, Secretary

Bevy A. Beimdiek
Erik Bergmanis
Suzanne B. Bradley P. John Brady
Hon. Richard Bresnahan
Dennis J. Capriglione
Mark W. Comley
Hon. Charles Curless
Dana Tippin Cutler
Joel R. Elmer
Brian Francka
Carol Chazen Friedman
Genevieve M. Frank
John W. Grimm
Richard F. Halliburton
Vincent F. Igoe, Jr.
Jennifer M. Joyce
James F. Kanatzar
Marie A. Kenyon
Hon. John F. Kintz
Mark H. Levison
Neil F. Maune, Jr.
Lauren Tucker McCubbin
Hon. Karen King Mitchell
Max E. Mitchell
Nancy R. Mogab
Hon. Mark H. Neill
Douglass F. Noland
Joseph P. Rice, III
Brett W. Roubal
Deanna K. Scott
Allan D. Seidel
Reuben Shelton
Walter R. Simpson
Wallace Squibb
Raymond Williams

Members by telephone:
Stephen R. Bough
Robert J. Buckley
J. B. Lasater
Eric J. Wulff

Members absent:
Edward J. Hershewe

Also present:
Sebrina Barrett
Catherine Barrie
Lucas Boling
Jim Brady
Dan Glazier
Kent Hopper
Chris Kelleher
Chris Janku
Jason Lamb
Dan Lehmen
Mike Magliari
Jeff Markway
Linda Oligschlaeger
Gwenda Robinson
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 29 and of the Executive Committee of September 29 and October 28, 2010 be approved. The motion was approved.
2. Legislation:
Ms. Catherine Barrie reported that the regular legislative process calls for the approval of bar-drafted legislative proposals at the September board meeting. She further explained
that an expedited process allows for proposals to be taken up at the November meeting, when timing of the regular process cannot be met. She noted that the legislation before the board today falls into this category.
The legislation being proposed for board approval includes: (1) two statutory changes and two rule changes submitted by the Missouri Bar Criminal Law Council; (2) legislation to eliminate the sunset provision of the Basic Civil Legal Services Fund; and (3) two probate and trust law measures. Ms. Barrie also reported that each board member received a packet containing contact information on the 2011 legislature, including a list of lawyer-legislators and a list of senators and representatives by district.
A. Criminal Law Council
Missouri Bar Criminal Law Council co-chairs Jason Lamb and Gwenda Robinson presented four Council recommendations designed to impact issues related to the criminal justice system. It was noted that the recommendations were the result of mutual give and take between prosecutors and public defenders and are being submitted as a complete package.
(1) First Offense Misdemeanors
The first objective would create a statutory basis for prosecutors to charge certain high-volume, low-level misdemeanors as first offense misdemeanors, thereby abrogating the possibility of incarceration, disposing of these cases with a fine and decreasing the caseload of the public defender system.
(2) Diversion Programs
This proposal would create a statutory framework for the creation of diversionary programs. Under the legislation, prosecutors would be able to create and use diversion programs that could keep individuals from formally entering the criminal justice system. Prosecutors could offer would-be defendants the opportunity to go in a diversion program which may include such requirements as payment of restitution, community service or victim-offender mediation. It was noted that the cost of the diversion program would result in more work and staffing needs for the prosecutor, which could be offset in part by administrative handling costs paid by the defendant. It was further noted that due to the drastic reduction in the use of bank checks, it is imperative that Missouri prosecutors receive new funding sources for such programs, and it was suggested that the administrative handling costs solution could be such a new source.
(3) Change of Venue
This proposal calls for a rule change limiting the action that occurs in new venues, when venue is changed as a matter of right. It was noted
that a defendant is afforded a change of venue as a matter of right in counties with populations of less than 75,000 and this rule change applies to these cases. Under the proposal, the only proceeding that would occur in a new venue would be the jury trial, all other proceedings, both pre-trial and post-trial, would occur in the originating county. It was noted that this change would serve the main purpose behind a venue change, to ensure an impartial jury. However, the change would also serve to reduce the cost incurred by prosecutors who must travel with the case, including the actual costs incurred, the intangible costs involved in time away from the office and the time and cost required for victims, witnesses and law enforcement personnel to participate in proceedings held in a new venue.
(4) Depositions
Mr. Lamb reported that the Council also recommends that the Board of Governors urge the Supreme Court of Missouri Rules Committee to adopt a rule change that would allow parties in criminal cases to provide copies (either photocopies or electronic copies) of deposition transcripts to opposing counsel free of charge. He noted that parties are not currently free to make copies of deposition transcripts without the permission of and payment to the court reporter. He explained that the current practice often results in high cost and are not within the scope of a prosecutor’s budget. Under the proposal, the opposing party would be entitled to receive a copy without either party being charged.
Concerns were raised regarding the change of venue indicating that the change would be a major change to the practice used in rural circuits. Suggestions were made that venue changes might be revised so venue can change to a different county, but should stay within the same circuit. Concerns were also raised about collecting the administrative handling costs to fund the diversion programs and also the effect of potential work-related injury risks to those participating in the program. And concerns were also raised about requiring court reporters to provide the product of their work free of charge.
It was moved and seconded to approve the recommendations as presented. A motion to amend was offered and seconded to vote on each of the four proposals separately. The amended motion was approved.
It was moved and seconded to approve the proposed legislation creating a statutory basis for prosecutors to charge certain high-volume, low-level misdemeanors as first offense misdemeanors. 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 supported and approved for filing. The motion was approved by two-thirds of the members present and voting.  Mr. Mitchell asked to be recorded as voting “no.”
It was moved and seconded that the proposed legislation creating a statutory framework for the creation of diversionary programs 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 supported and approved for filing. The motion was approved by two-thirds of the members present and voting.
It was moved and seconded that the proposed rule change limiting the action that occurs in new venues to the jury trial, when venue is changed as a matter of right as required in counties of 75,000 or less, 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 supported and approved. The motion was approved by two-thirds of the members present and voting.
It was moved and seconded that the Council’s recommendation that the Board of Governors urge the Supreme Court of Missouri Rules Committee to adopt a rule change that would allow parties in criminal cases to provide copies (either photocopies or electronic copies) of deposition transcripts to opposing counsel free of charge 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 supported and approved. The motion failed.
Mr. Johnston appointed Wallace Squibb and Eric Wulff to work with the Council on matters related to the concerns and issues pertaining to the proposed rule change regarding opposing counsel access to deposition transcripts.
B. Basic Legal Services Fund
Mr. Dan Glazier reported on a proposed measure that would remove the sunset provision contained in 477.650 RSMo, the statute that provides for the
collection of a filing fee to fund the Basic Legal Services Fund. Mr. Glazier reported that under the current statute, the filing fee provision sunsets every five years and Legal Service Corporation must request an extension of the sunset period in order for the filing fee to continue. Each time an extension is requested, Legal Services risks the possibility of losing this funding, which is its second largest funding source used to serve the civil legal service needs of low-income Missourians. 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 supported and approved for filing. The motion was approved by two-thirds of the members present and voting.
C. Trust Amendment Under Power of Appointment
Mr. Mike Magliari reported that the proposed legislation amends 404.710.6(1) RSMo, allowing an attorney-in-fact acting as the fiduciary for the settler to amend or revoke the provisions of a trust instrument. The inclusion of this power is not necessary under a power of attorney granting general powers if the trust agreement specifically authorizes the exercise of such powers by the attorney-in-fact. It also amends 404.710.6 (12) RSMo, inserting the right of sepulcher of the principal’s body and includes the Revised Uniform Anatomical Gift Act. 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.
D. 120-Day Notice to Beneficiaries
Mr. Magliari also reported that this proposed legislation would amend 456.8-813 RSMo, changing the period in which the trustee has a duty to inform the qualified beneficiaries to 120 days from the former 60-day period. The change is intended to give trustees and their counsel adequate time after a settlor’s death to notify the qualified beneficiaries of their rights to gain information concerning the administration of the trust and material facts necessary to protect their interests. 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. Committee Reports
A. Client Security Fund Report
Mr. Chris Janku reported that the Client Security Fund Committee held its third meeting of the year on November 5 and is recommending the payment of 39
claims totaling $137,254.44 and the denial of 10 claims. He further reported that one claim was withdrawn by the client. He noted that the board had previously approved the payment of 18 claims for $29,250 at the May 14 board meeting and 17 claims for $18,750 at the September 29 board meeting. The total of all claims recommended for payment for this year is $185,074.44. He reported that $200,000 was appropriated for the Fund in 2010 and the proposed budget for 2011 is $204,000. It was moved and seconded to approve the recommendation of the committee. The motion was approved.
B. Business Law Committee
Chris Kelleher, Chair of the Business Law Committee, proposed that the committee initiate a “Missouri Bar Listens to Business” campaign. He described the initiative as a way for The Missouri Bar to learn about the business community’s perspective regarding how state laws, statutes and regulations impact the ability of Missouri businesses of all sizes to thrive and prosper. It will also serve as an opportunity to let business owners and management know that The Missouri Bar is interested in their ideas and concerns. He noted that the campaign is not intended to necessarily result in any action on the part of The Missouri Bar, but is mainly to foster better understanding and recognition of the issues facing business. It was further proposed that the Board of Governors endorse the concept at this meeting and allow the Business Law Committee to work out the details with the Executive Committee, so implementation can begin as soon as possible. It was moved and seconded to approve the proposed initiative. It was moved and seconded that a friendly amendment be accepted for the Business Law Committee to work out the details with the Executive Committee, but the final plan be reported to the Board of Governors before moving forward. The motion was approved as amended.
C. Delivery of Legal Services
Richard Halliburton reported on behalf of the Delivery of Legal Services Committee regarding the committee’s approval of a draft memorandum proposing the reinstatement of the voluntary reporting of pro bono hours. Mr. Birkes reported that the Executive Committee reviewed the memorandum and recommends the reinstatement of reporting. He further reported that the Executive Committee also recommends that the collection of the information should be accomplished using the least expensive method and in the most unobtrusive manner possible. This would be accomplished by creating an electronic form for members to report pro bono hours online. This form will be posted on the Bar’s website and publicized in ESQ. It was moved and seconded to approve the Executive Committee’s recommendation. The motion was approved.
D. Minority Issues Committee
Dana Tippin Cutler reported that the Minority Issues Committee website has been launched. She thanked Missouri Bar staff for their work in developing the website. She indicated that it is a great resource to stay in contact with minority members of the bar. She encouraged Board members to view the site and provide feedback.
4. Finances:
Messrs. Bergmanis and Birkes presented the budget, answered various questions and, on behalf of the Finance Committee, Mr. Bergmanis moved the approval of the budget as
amended by the negotiated salary and benefits costs for the deputy executive director.  It was also moved and seconded that Ms. Sebrina Barrett be hired as deputy executive director.  The motions were approved.
5. Appointments:
A. November Appointments:
(1) Client Security Fund Committee
Mr. John Johnston reported that the first term of Mr. Scott Robbins is expiring and he is eligible for reappointment. It was moved and seconded to reappoint Mr. Robbins. The motion was approved.
(2) Press-Bar Commission
Mr. Johnston reported that Mr. Mark Sableman’s first term is expiring and he is eligible for reappointment. It was moved and seconded to reappoint Mr. Sableman for another term. The motion was approved.
B. January Appointments
It was reported that there are no appointments for the January meeting.
6. Officer’s Report:
A. President’s Report
(1) Citizens’ Commission on Compensation for Elected Officials
Mr. Johnston reported on a proposal prepared by Missouri State Court Administrator Greg Linares and submitted to the Citizen’s Commission on Compensation for Elected Officials, which recommends that Missouri judicial salaries be indexed to 80 percent of corresponding federal judicial salaries. The proposal takes the state’s current economic challenges into consideration, precluding implementation until the state is in a better financial situation, and even then, not before fiscal 2013. He further reported that a Commission’s salary recommendation will go into effect unless rejected by two-thirds vote of both the House and Senate by February 1. Mr. Johnston reported that the Executive Committee recommends the Board of Governors endorse the proposal. It
was moved and seconded to approve the Executive Committee recommendation. The motion was approved. The following board members abstained: Hon. Richard Bresnahan, Hon. Charles Curless, Hon. John F. Kintz, Hon. Karen King Mitchell, Hon. Mark H. Neill and Jennifer Joyce.
(2) Judicial Disqualification Project Recommendations and Report
Mr. Johnston reported that the ABA Standing Committee on Judicial Independence has asked The Missouri Bar co-sponsor its report and recommendations to improve judicial disqualification practices and procedures when the impartiality of a judge might be questioned either through specific conduct or the appearance of impropriety. He noted that the recommendations and report were both included in the board packet and that the Executive Committee recommends approval of co-sponsorship. It was moved and seconded to co-sponsor the ABA recommendations and report. The motion was approved.
(3) Ongoing Challenges to the Missouri Non-Partisan Court Plan
Mr. Johnston reviewed the overall results of Missouri judges in retention elections, as well as the results for Missouri judges standing in popular elections. He noted that all non-partisan system judges were retained and the average retention rate was 67%. He also called attention to recent retention election results held in Iowa, in which three state Supreme Court judges were not retained. He noted that there was an infusion of one million dollars used to support efforts to remove those judges. He cautioned that the Iowa results illustrate the potential threat of action targeting retention elections.
He also gave an update on the legislative election results, noting that there are now 26 lawyers in the General Assembly. He reported that there is an expectation that the legislature will introduce measures to change the Non-Partisan Court Plan and James Harris has indicated that Better Courts for Missouri will once again introduce an initiative proposal to change the Plan. He asked Board members to review the list of legislators provided in their packet and return the form listing any lawmakers they know, so that information can be added to our database.
He encouraged all board members to sign up for the speaker’s bureau, noting that the effort has been working very well as a way to educate citizens regarding the Non-Partisan Court Plan.
(4) Deputy Executive Director Search Report
Ms. Sebrina Barrett briefly offered remarks to the Board, discussing her education and professional background and discussing how her background and expertise, especially her work within the New York Bar Association will be applied to the Deputy Executive Director position with The Missouri Bar.
(5) Juvenile Justice Indigent Assessment Study
Mr. Johnston called attention to a proposal from the National Juvenile Defender Center, which is asking the Board of Governors to support a juvenile defense assessment project in Missouri. The assessment was described as a study examining access to counsel, quality of representation and barriers to effective representation for juveniles in the state. He reported that the Executive Committee was unclear as to what an endorsement means and whether the NJDC expects financial support for the study.
He indicated that Prof. Doug Abrams was consulted and he praised the organization and its staff, noting that the organization has a particular perspective. It was also reported that the Missouri Public Defender Deputy Director Cat Kelly supports the project. He noted that under the circumstances, the Executive Committee recommends that a letter be sent to NJDC, stating that the Board of Governors is very much in favor of gaining more information about the juvenile justice system; that The Missouri Bar does not currently have any funds available to financially support this project; that we wish the organization good luck in this effort and that we would appreciate seeing the results when the assessment is completed.  The Board approved the Executive Committee’s recommendation.
(6) Miscellaneous Matters
(a) Liaison Appointments
Mr. Johnston reported that he has appointed four liaisons intended to enhance lines of communication with the President. The liaisons appointed are:
Jennifer Joyce- Prosecutors
Joel Elmer – Public Defenders
Deanna Scott – Legal Aid
Paul Henry – Solo and Small Firms
(b) JCBA and Mound City Committee Appointments
Mr. Johnston reported that he made a request of the Jackson County Bar Association and Mound City Bar asking for the suggestions of individuals within their membership who would be interested in Missouri Bar committee vice-chair positions and
future leadership as chairs. He reported that he has heard from JCBA, but not from the Mound City Bar.
(c) ABA Task Force on the Effects of Underfunding of the Justice System
Mr. Johnston reported that the ABA Task Force on Preservation of the Justice System is studying the effects of the underfunded justice system. He noted that this report is informational, but if organizations have any reports, anecdotal evidence, surveys or other relevant information pertaining to this issue, the ABA requests that they be shared with the task force.
B. President-Elect’s Report
Ms. Lynn Ann Vogel reported that the Special Committee Assisting Lawyers in a Changing Economy is interested in implementing an updated version of the Bar’s “Bridge the Gap” program. She reported that the committee is looking for copies of the previous program publication and asked members to let her know if they have one that they would be willing to share.
C. Vice-President’s Report
No report.
D. Executive Director’s Report
Mr. Keith Birkes reported that the dates for the February board meeting at the Lodge of the Four Seasons have been circulated. He noted that in addition to the serious work of the Board, the meeting will include a variety of fun activities and social events. Board members will receive reminders regarding this meeting as the date gets closer.
There being no further business, the meeting was adjourned.
Respectfully submitted,
Keith A. Birkes, Secretary