Board Minutes - February 18, 2011

Lodge of the Four Seasons, Lake Ozark

Members present:
John S. Johnston, President
Lynn Whaley 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
Robert J. Buckley
Dennis J. Capriglione
Hon. Charles Curless
Joel R. Elmer
Carol Chazen Friedman
Genevieve M. Frank
Richard F. Halliburton
Jennifer M. Joyce
James F. Kanatzar
Marie A. Kenyon
Hon. John F. Kintz
J. B. Lasater
Mark H. Levison
Neil F. Maune, Jr.
Lauren Tucker McCubbin
Hon. Karen King Mitchell
Max E. Mitchell
Nancy R. Mogab
Hon. Mark H. Neill
Joseph P. Rice, III
Brett W. Roubal
Deanna K. Scott
Allan D. Seidel
Reuben Shelton
Walter R. Simpson
Wallace Squibb
Raymond E. Williams
Eric J. Wulff

Members by telephone:
John W. Grimm
Wallace Squibb

Members absent:
Stephen R. Bough
Mark W. Comley
Dana Tippin Cutler
Brian Francka
Edward J. Hershewe
Vincent F. Igoe, Jr
Douglass F. Noland

Also present:
Sebrina Barrett
Catherine Barrie
Lucas Boling
Jim Brady
Kent Hopper
Chris Janku
Dan Lehman
Jeff Markway
Linda Oligschlaeger
Sara Rittman
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 held on November 19, 2010 and of the Executive Committee held November 19, 2010, December 12, 2010, and January 28, 2011 be approved. It was noted that Suzanne Bradley was present at the December 9 meeting of the Executive Committee and the minutes of that meeting will be corrected accordingly. The motion with the correction added was approved.
2. Finances: 
Mr. Eric Bergmanis called attention to the year-end financial statements and financial status summary, reporting that the Missouri Bar ended 2010 a little more than $1 million dollars under budget. He called attention to a number of operational areas that were under budget for 2010, including the Annual Meeting, public information, Missouri Bar committees, Board of Governors and officer travel and general office. He reported that the balance in reserve will be approximately $4.2 million, rather than the originally projected $3.2 million, as a result of the budget savings realized in 2010. He also noted that the additional reserve balance should make it possible to delay the need for a dues increase through 2012-13, if the need does not arise where significant funds are needed to defend against attacks on the judiciary.
He further reported that CLE publications ended the year approximately $135,000 over budget. He noted that the publications portion mainly pertains to the Missouri Bar deskbooks. He reported that these publications are a very valuable resource for Missouri lawyers and the department has plans to increase revenue in this area.
3. Legislation:
Ms. Catherine Barrie reported on the status report of Missouri Bar committee-drafted legislation and on a written summary of the legislative positions taken by the Executive Committee. She noted that the first three bills listed on the Missouri Bar committee-drafted legislation status report – a proposal drafted by the Criminal Law Council, a bill from the Delivery of Legal Services Committee to remove the sunset provision on the Basic Civil Legal Services fund and a Family Law Section update of the Uniform Interstate Family Support Act – had been voted out of committee earlier in the week. All three were sponsored by Rep. Stanley Cox.
She called attention to the summary of positions taken by the Executive Committee to date. She further reported that the Executive Committee met yesterday and took positions on about 12 additional legislative measures. She reported that position statements are being developed and will be distributed in approximately one week. She concluded with a reminder that the Missouri Bar’s legislative scope statement, which had been provided to various legislators, has been sent to members of the board via the listserve.
4. Appointments:
A. February Appointments
(1) Fee Dispute Resolution Committee
Mr. John Johnston reported that Dr. Lois Shufeldt has resigned as a member of this committee. Her term had been set to expire in May, 2011. The Executive Committee recommends that Adele Holt be appointed to fill Dr. Shufeldt’s unexpired term. It was moved and seconded to appoint Ms. Holt. The motion was approved.
B. May Appointments
(1) Fee Dispute Resolution Committee
Mr. Johnston reported that James Laramore’s term will be expiring and he is eligible for reappointment. He noted that this appointment will be taken up in May for board action.
5. Committee Reports:
A. Client Security Fund Committee
Mr. Chris Janku reported that the Client Security Fund Committee met by conference call on February 9 and is requesting that the Board approve the immediate payment of $13,100 be paid to an individual whose claim is related to the actions of disbarred attorney Frank Carter.  Mr. Janku noted that the expedited payment is requested because the claimant is facing immediate and severe financial difficulties. It was moved and seconded to approve the request for expedited payment. The motion was approved.
B. Committee on Lawyers in a Changing Economy
Mr. Ray Williams reported on the work of the Committee on Lawyers in a Changing Economy.  He noted that the committee has met several times during the past three months in its efforts to identify ways to help lawyers affected by the down economy.
(1) MoBarCircle Contract Renewal
Mr. Williams reported that the committee does not recommend the renewal of the contract for MoBarCircle, a private social networking system that has been available to members for several years. He reported that the committee had studied the use of the MoBarCircle service. They found that there are significant challenges in getting  members to participate in the network, especially with competition from more popular social networking options (e.g. Facebook, LinkedIn, etc.) and that access to a national job bank – one of the original reasons to participate in the private network – was not as valuable as expected. It was moved and seconded to provide Affinity Circles, Inc. the requisite 30-day notice and end the contract for MoBarCircle. The motion was approved.
(2) Coordinating Efforts to Use Twitter as a Communications Tool
Mr. Williams reported that members of the committee have been researching the expanded use of Twitter as a tool to communicate with Missouri lawyers. He noted  that MoBarCLE currently uses this social media tool in relation to the promotion of  its educational programming. He reported that the committee is working with Jack Wax to  develop a coordinated effort for using Twitter as a communication tool to support other  events and activities of The Missouri Bar.
(3) Practical Skills Resources for New Lawyers
Mr. Williams reported that efforts are underway to provide specifically designed resources targeting the needs of young and recently admitted lawyers in a difficult economy. He noted that because of the tight job market, many new lawyers are turning to solo practice. He explained that many of these lawyers do not possess the practical skills that are developed through experience and they do not have the benefit of advice and assistance that would be available if they were an associate in a law firm. He noted that years ago, new lawyers were provided with a publication called “Bridging the Gap,” which contained practical skills information and resources. While practical skills CLE such as the MoBarCLE “How to” series and the “Stepping Up, Stepping Out” series address some of these issues today, the committee is interested in developing additional resources, including materials which can be given to new enrollees.
Mr. Williams reported that the Leadership Academy and the Young Lawyers Section have both expressed an interest in helping with these efforts. He reported that the Leadership Academy will assist with the development of a new “Bridging the Gap” resource, and the YLS is  planning to further develop the “Stepping Up, Stepping Out” program so it contains very tangible practical information and resources for newly admitted lawyers about how to handle specific types of cases.
(4) Mandatory Mentoring Exploration
Mr. Williams also reported that the committee has been researching the use of mandatory mentoring programs in other states. He noted that the mandatory mentoring programs offer a way to provide new lawyers with valuable advice and guidance, as well as, practical information they need to know should they decide to open their own practice. He explained that The Missouri Bar currently has a voluntary mentoring program, which has a fairly modest level of participation. Ms. Sebrina Barrett provided a briefing on some of the mandatory mentoring programs implemented in other states. Ms. Barrett reported that Oregon, Georgia, Utah and Delaware have adopted mandatory mentor programs. She outlined key aspects of the various programs including overall program  structures, criteria for participation, fees related to the programs, CLE credit offered, types of program formats used, standardization of subject matter and staffing requirements.
Mr. Wallace Squibb reported that the Springfield Bar Association mentoring program has had 100% participation for the past three years. He also noted that the Missouri Bar Professionalism Committee has been engaged in an ongoing discussion about this subject. He suggested the Lawyers in a Changing Economy committee coordinate its efforts with both of these groups. And he volunteered to be involved with this effort as well.
Questions were raised as to whether there are statistics supporting the perceived problem – that more new lawyers are opting for solo practice. It was noted there is considerable anecdotal evidence that this trend exists and the need for programs to help these lawyers. Comments were raised about the proliferation of “do-it-yourself” forms available from the Supreme Court of Missouri and private companies, the impact these actions have on the perceived value and need for the expertise of lawyers and the impact on opportunities available for new lawyers.
C. Electronic Legal Research Committee
Ms. Linda Oligschlaeger reported on the contract renewal, usage statistics and content status of Fastcase. She reported that Fastcase is offering The Missouri Bar a three year contract rather than the year-to-year term offered in the past. She reported that the annual fee would not increase under the new contract and that Fastcase has and will continue to be adding resources including expanded case law, Missouri legislation, Missouri Attorney General Opinions, jury instructions and law review articles. Fastcase is also offering new mobile apps. She also reported that Fastcase usage among members of The Missouri Bar is on the upswing, noting that members surpassed one million searches, views and print actions during 2010. She reported that the Electronic Legal Research Committee recommends renewal of the contract for the three year term offered by Fastcase. It was moved and seconded to approve the three year contract as recommended. The motion was approved.
D. Complaint/Dispute Resolution Committees
Ms. Oligschlaeger reported on the three programs that fall under the Missouri Bar Complaint/Dispute Resolution services: (1) Fee Dispute Resolution, (2) Complaint Resolution Program, and (3) Lawyer-to-Lawyer Dispute Resolution. She called attention to the year-end written reports provided for each program and briefly described the differences among the programs, including who they are designed to serve. She further explained how all of these services act in some ways as diversionary programs, including offering an additional resolution option outside of the disciplinary system for OCDC.
E. Other Committee Reports
(1) Young Lawyers Section Report
Ms. Lauren Tucker McCubbin reported for the Young Lawyers Section. Ms. McCubbin reported that the Young Lawyers Section has taken on a number of projects this year, including a new YLS website, the updating of the domestic violence handbook and changes to the YLS by-laws to allow for electronic voting.
She reported that the newly designed YLS website is online. She explained that the site is separate from the main Missouri Bar website and offers a clearinghouse of information and links specifically targeting the young lawyer, including an interactive feature where YLS events automatically appear on a young lawyer’s Outlook calendar. She also noted that the site links to key services important to the younger lawyer such as mentoring and Fastcase. She further reported that plans exist to promote the site at the bar enrollment ceremonies in May and at the July bar exam.
Ms. McCubbin also reported that YLS has been working in conjunction with the Missouri Coalition on Domestic Violence to update the Domestic Violence Handbook. The updated version will be easier to use and includes the latest resources to assist those affected by domestic violence.
She further reported that the YLS is working on a change to its by-laws to allow for electronic voting in Section elections; the YLS has a regional meeting planned later this month in St. Louis and the Section will be working with The Missouri Bar related to ethics issues and social media.
6. Officers’ Reports:
A. President’s Report
(1) Adoption of the Missouri Citizens’ Commission on Compensation
Recommendations:
Mr. John Johnston reported on the successful effort to adopt the Missouri Citizens’ Commission on Compensation recommendation tying Missouri judicial salaries to the salaries of judges in the federal judiciary. He reported that the Commission recommended that Missouri judicial salaries be tied to a set percentage of the salaries of their counterparts in the federal judiciary starting in FY 2013 (which begins July 2012). The result will be that the salaries of the Chief Justice and members of the Supreme Court of Missouri would equal 69 percent of their federal counterparts. The Missouri appellate, circuit and associate circuit level salaries would equal 73 percent of their federal counterparts. Mr. Johnston commended the team effort involved, recognizing the critical roles played by Randy Sher and several other legislative experts hired by The Missouri Bar to advocate in support of this recommendation with members of Missouri’s Legislature. He recognized the efforts of the Supreme Court of Missouri and Office of State Courts Administrator. He commended four senators – Sen. Goodman, Sen. Justice, Sen. Kabeny and non-lawyer Sen. Dixon – for the critical role they played in this effort. And he complimented the Missouri Bar legislative staff. Judge Bresnahan expressed appreciation on behalf of the members of the judiciary. Questions were raised as to whether threats remain that could derail the salary increase. It was noted that there could be an option not to provide appropriations for the increase or to prevent the action through constitutional amendment, both considered unlikely.
(2) Possible Challenges to the Missouri Non-Partisan Court Plan
Mr. Johnston reported that uncertainty exists as to the current challenges to the Non-Partisan Court Plan and to the possibility of new challenges as the legislative session continues. He reported that there are currently three known challenges, two that would change the current selection process (one introduced by Rep. Stanley Cox and the other introduced by Rep. Jim Lemke) and one that would make all judicial elections nonpartisan. Both bills to change the current process would essentially put the power of appointment into the hands of the governor, through changes to the composition of the commissions, giving the governor the option to reject panels and providing for no Senate approval. Mr. Johnston reported that it is not clear whether any of these challenges have significant support.
(3) 2011 Kansas City Annual Meeting of The Missouri Bar
Mr. Johnston reported that planning is underway for the 2011 Annual Meeting, which will be at the Hyatt Crown Center. He noted that we are looking at the WWI memorial as the possible venue for the Best of Missouri reception.
(4) Miscellaneous
Mr. Johnston reported that the Business Law Committee had proposed a survey to the business community. He noted that the Executive Committee reviewed and asked for changes which have been made and the Executive Committee approved the revised version for dissemination. He reported that a copy has been provided in the meeting materials.
B. President-Elect’s Report
(1) Pro Bono Website Update
Ms. Lynn Ann Vogel reported that the Pro Bono website is expected to be launched in March, after the new staff person comes on board. She gave a brief overview of the website, explaining that it is designed to provide information to lawyers about organizations that need pro bono legal help and match those lawyers with the needs. She noted that the need is great, citing that Legal Services can only serve approximately 20 percent of the legal needs of low-income citizens. Ms. Vogel commended Heidi Vollet for her work and leadership in the development of the website. Ms. Vogel also reported that the website will help in Missouri Bar efforts to recognize the lawyers performing pro bono services. She reminded board members of The Missouri Bar’s effort to encourage lawyers to voluntarily report the number of pro bono hours performed annually and requested that board members go online and report their hours.
(2) Sites for the Winter 2012 Meeting of the Board of Governors
Ms. Vogel requested comments and input from the board regarding the 2012 location for the winter meeting of the Board of Governors, particularly as it relates to the format being solely a board meeting versus a mid-year seminar and as to holding the meeting in Missouri or out of state. Mr. Keith Birkes provided a brief review of history of the meeting as a mid-year seminar format held out of state, describing the rationale underlying the CLE seminar format, the issues related to holding the meeting outside of Missouri, the financial considerations related to this format and the declining attendance trend and increased expense trend associated with the mid-year seminar model over time. Comments were expressed both in favor of and in opposition to returning to the mid-year seminar format held out of state. Ms. Vogel thanked the board for the discussion and asked board members to continue to provide any additional comments by email after this meeting. She reported that she will take all viewpoints into consideration, review the financial history and make a location decision, which will be presented to the board for approval.
C. Vice-President’s Report
Mr. Starke requested that board members share any insights, comments or viewpoints related to ethics and professionalism issues and social media, particularly in regards to litigation issues. He reported that an effort is underway, working with the YLS, to identify and provide some badly needed guidelines in this area.
D. Executive Director’s Report
Mr. Birkes briefly updated the board on orientation efforts underway for The Missouri Bar’s new Deputy Director, Sebrina Barrett. He reported that Ms. Barrett would be involved in a wide range of activities throughout the state on behalf of The Missouri Bar as a way to introduce her to the many constituents that make up the state’s legal community.
Mr. Birkes reported that Spring Committee meetings are scheduled for May 12-13, with the committee/section meetings convening on May 13. He also requested suggestions for a luncheon speaker.
7. Miscellaneous Discussion Topics/Issues:
Mr. Johnston opened the floor for a discussion of topics/issues suggested by members of the board. He noted that there will not be time to cover all topics, but those that are not covered at this meeting will be added to the list for discussion for future meetings.
A. Possible Revisions to The Missouri Bar’s Legislative Review Process
Ms. Catherine Barrie provided a brief overview of the current legislative review process, explaining the role of staff to review content, prepare summary materials, identify and elicit comments from legislative committees within Missouri Bar substantive committees and prepare recommendations prior to the review and action by the Executive Committee. She further explained that the Executive Committee meets every few weeks (more often as needed) to review and make decisions related to Missouri Bar positions on legislation. She reported that position statements are prepared and reviewed by the Executive Committee, and these statements are delivered in person to the legislators and sent to the board.
Discussion focused on how the process could be adjusted to make it possible for board members to give their input to the Executive Committee in this process. Discussion focused on timing issues including the best point in the process for board member input – (1) at the same time that legislation is sent to legislative committee’s for comment, (2) after legislative committees have provided their comments, or (3) after the Executive Committee has reviewed legislation and taken a position, but before that action is communicated in the position statements. Other options included suggestions that board members join the substantive committees of which they have an interest and ask to be on that committee’s legislative review subcommittee. Issues were also raised about the short time period that would be required between receipt and response, due to the pace that legislation progresses through the General Assembly.
B. Discussion of the $20 Bar Fee Dedicated to Legal Services
Mr. Johnston led a discussion about collecting money as part of member dues to fund aspects of the justice system. He cited as an example the $20 bar fee that is currently collected to support Legal Aid, which began about a decade ago. He noted that other entities may have similar needs, such as the public defender system, and posed a question as to how the Bar should make decisions on these issues. Questions were raised about whether The Missouri Bar should ever consider actions that take over the responsibilities of the state, such as funding criminal defense attorneys to uphold the state’s constitutional requirement. Some consideration was given to the use of a check off option on the dues statement to allow lawyers to voluntarily support potential funding efforts, noting that this option allows lawyer to opt out. Discussion also considered a distinction between temporary assistance and permanent funding of such efforts.
C. Should The Missouri Bar provide more information about disciplinary actions taken against members?
Mr. Johnston reported that an Advisory Committee of the Supreme Court of Missouri is expected to review the issue of releasing more information about the disciplinary actions against members of The Missouri Bar and releasing that information at an earlier stage of the disciplinary process. Ms. Sarah Rittman, Missouri’s ethics council, reported that disciplinary information about a lawyer is only made public under the current process when disciplinary action is taken or the attorney has agreed to an admonition. She reported that the committee is expected to consider changing the process where the disciplinary information would become public when an information is filed. She explained that the information is filed after the OCDC gets a complaint, there is an investigation conducted and either OCDC or one of its regional district committees recommend to the court that there is probable cause that a rules violation had occurred or there is a pattern of lawyer conduct in the case that warrants probable cause that an information should be filed.
Questions were raised about the length of time that it takes for the action to be completed. Concerns were also raised about the likelihood of damaging publicity targeting a lawyer before a final decision is made on the matter, the importance of reputation to a lawyer’s practice and to the profession as a whole, and the potential for unjustly tarnishing a lawyer’s reputation should no violation ultimately be found. Additional concerns were raised about the inherent contentious nature of the legal profession and the potential for exploitation of the public release of information for these purposes.
Additional discussion focused on the ABA’s review of the disciplinary system in the year 2000 and their recommendation for greater transparency in the process; the public’s right to this information; the current constraints on OCDC to provide information to the public and the potential for continuing damage these constraints can cause if a lawyer is actively engaged in unethical practices.
A related discussion focused on a broader and more detailed release of information related to disciplinary actions, including publication of the specific rules that have been violated in an action and distribution of the information to new enrollees as currently done in Florida.
D. Other Topics
(1) Election of the Vice President
Mr. Johnston led a discussion about the process to elect the vice-president of The Missouri Bar, noting that under the current system new board members vote on this leadership position. The discussion focused on two positions related to the matter: (1) whether this is the best approach when new board members do not know the candidates as well as the departing board members who have served with the candidate, and (2) the counter position that the newly elected members will be serving with the vice-president and therefore, should make the choice. It was noted that the current process is part of the by-laws and may be in Supreme Court Rule.
Mr. Johnston also reminded board members that there are rules related to when a candidate can solicit support for an election. A candidate can solicit the support of current board member one year before an election. Candidates must wait for a new board member to be elected before soliciting for their support. General consensus was expressed for the continued practice of having candidates address the board at the summer meeting and to address those in attendance at the new board orientation.
There being no other business, the meeting was adjourned.
Respectfully submitted,
Keith A. Birkes, Secretary