Board Minutes – September 21, 2011

Wednesday, September 21, 2011 – 1:00 p.m.
Kansas City Hyatt Regency Hotel

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
Stephen R. Bough
Suzanne B. Bradley
P. John Brady
Hon. Richard Bresnahan
Robert J. Buckley
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
Edward J. Hershewe
Vincent F. Igoe, Jr
Jennifer M. Joyce
Hon. James F. Kanatzar
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
Douglass F. Noland
Joseph P. Rice, III
Brett W. Roubal
Deanna K. Scott
Reuben Shelton
Walter R. Simpson
Wallace Squibb
Raymond E. Williams
Eric J. Wulff

Members absent:
Marie A. Kenyon
Allan D. Seidel

Also present:
Millie Aulbur
Sebrina Barrett
Catherine Barrie
Lucas Boling
Jim Brady
Kent Hopper
Chris Janku
Dan Lehman
Linda Oligschlaeger
Delores Shepherd
Robert Stoeckl
Gary Toohey
Jack Wax
Eric Wilson

1. Minutes:

It was moved and seconded that the minutes of the meeting of the Board of Governors of July 8 and meetings of the Executive Committee of July 7 and September 2, 2011, be approved. The motion was approved.

2. Finances:

Mr. Erik Bergmanis called attention to the financial statements as of August 31, 2011, and reported that the finances of The Missouri Bar are in very good shape. He noted that as of the end of August, expenses were at 58.5%. He further reported that the reserve at the end of this year is expected to be $3.4 million if revenue and disbursements remain on budget.
3. Legislation:

Ms. Catherine Barrie briefly discussed the policy statement related to the review and approval process for legislative proposals, explaining that a motion and vote is required as to whether the proposal is within scope and a separate vote to approve or disapprove the legislative proposal, with both votes needing two-thirds in favor for approval. She reported that five legislative proposals would be considered – two from the Family Law Section, two from the Probate and Trust Committee and one from the Commercial Law Committee. Ms. Barrie also reported that the chair of the Criminal Law Committee would provide an update on a four year project to revise and update the Missouri criminal code.

A. Powers to Direct and Trust Protectors

Mr. Mike Magliari, Chair of the Probate and Trust Law Committee’s Legislative Subcommittee, reported on proposed legislation to amend 456.8-808 RSMo. He explained that the measure is designed to address questions raised following the landmark case Robert T. McLean Irrevocable Trust v. Davis and to provide clarification to the law related to powers to direct and a trust protector’s rights and responsibilities. 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.

B. Qualified Spousal Trust

Mr. Magliari next reported on proposed legislation to amend 456.3-301 RSMo. He reported
that legislation related to this statute had been before the Board last year, that the Board approved the legislation and it passed by the Missouri Legislature and was enacted into law in August 2011. He explained that the current legislation was needed to clarify the intent of the drafters that it is possible to have trusts held and administered under the terms and conditions in both subdivision (a) and (b) of subsection 1 of this statute defining the “trusts.”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.
C. Criminal Code Revision
Mr. Jason Lamb, co-chair of the Criminal Law Committee, provided an update on the four year effort of the Criminal Code Subcommittee to conduct a comprehensive review of the Missouri Criminal Code and to propose revisions to the code. He reported that the committee should complete its work and propose its recommendations to the Board of Governors at the November meeting. Mr. Lamb provided a brief history of the criminal code in Missouri, outlining how the area of criminal law evolved over time prior to the 1970s, when the first Missouri Criminal Code was developed and approved by the Missouri Legislature. He reported that the goals of the current review and revision focus on chapters 556-558. Mr. Lamb indicated that proposed changes are expected to include the renumbering of statutes, refining language and addressing duplicative sections within the code. He reported that proposed changes are also anticipated in relation to sentencing, fine schedules, the reclassification of drug offenses, and to the statutory scheme related to assaults, sexual offenses and other offenses including stealing. He further reported that substantive changes will include the addition of a fourth class of felony offenses and a fourth class of misdemeanor offenses.
Mr. Lamb provided a brief overview as to the composition of the committee, noting that most of the individuals involved have participated during the full four year period. He reported that the committee is composed of a balanced number of lawyers representing both prosecutorial and defenses perspectives. He also reported that the committee has worked under a principle of consensus with most of the recommendations receiving unanimous approval within the committee. Mr. Johnston thanked the committee for its work.
D. Rights of a Person Who Establishes a Parent/Child Relationship
Mr. Larry Swall, Chair of the Family Law Section, together with Jack Cochran and Ms. Christa Hogan reported on proposed legislation to give third parties the opportunity to seek a continuing parental role in the life of child for whom they have been an “effective” (formerly “equitable”) parent, if proven that such a relationship existed, that continuing that relationship is in the best interest of the child; and, that the presumption of parental authority should be overcome due to factors that suggest the biological parent is acting to the detriment of the child. 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 to receive the requisite two-thirds vote needed for approval of those present and voting.
E. Parenting Coordination
Mr. Swall and Hon. Douglas Beach reported on proposed legislation that 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 legislation had been proposed to the Board on two previous occasions and includes provisions that both parties must agree to the appointment of a parenting coordinator, appointments are made at the judge’s discretion and the parenting coordinator would not have the authority to change any decisions, orders or agreements approved by the court.
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 to receive the requisite two-thirds needed for approval of those present and voting.
F. Property Exempt from Attachment
Mr. Dennis Capriglioni, Board liaison to the Commercial Law Committee, reported on proposed legislation to amend 513,430.1(10), 513,430.1(5), 513,430.1(10)(f), and 513.440 RSMo to clarify that the exemption in motor vehicles applies to multiple vehicles owned by a debtor until the exemption amount is extinguished; remove the word “local” before “public benefit” as it has no legal meaning; change the reference to the Uniform Fraudulent Transfer Act to reflect the correct cite to the proper section of RSMo; raise the maximum age of dependent to 21; clarify that the exemption for a mobile home that sits on property not owned by the owner of the mobile home and clarify subsection numbering in 513.430(10) (e). 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. September Appointments

(1) Trustees of The Missouri Bar

Mr. Johnston reported that Fred Drakesmith’s first term as a Trustee is expiring and he is eligible for reappointment. It was moved and seconded to reappoint Mr. Drakesmith for another term. The motion was approved.

B. November Appointments

Mr. Johnston reported that a list of November appointments has been provided in anticipation of action at the November meeting, noting that any advice regarding the November appointments is welcome.
(1) Client Security Fund Committee
Matt Devoti’s first term is expiring. He is eligible for reappointment.
(2) Missouri Commission on Retirement, Removal and Discipline
Sheldon Stock’s and Jennifer Gille Bacon’s terms on the Commission are
expiring and they are not eligible for reappointment.
(3) Lawyer-to-Lawyer Dispute Resolution Committee

The first terms of Theresa L. F. Levings, Keith Cutler, Ronald Willenbrock,
Janet Thompson and the Honorable Gary Lynch are expiring. All are
eligible for reappointment.
(4) Press-Bar Commission
Honorable Jerry Venters’ term on the Commission is expiring.
(5) IOLTA

John Joines’ term as The Missouri Bar’s non-lawyer appointment is expiring
and he is not eligible for reappointment.
(6) Complaint Resolution

C. J. Larkin’s and Kathleen Bird’s terms are expiring and they are eligible for
reappointment. Allen Garner’s second term is expiring and he is not eligible
for reappointment.

5. Committee Reports:

A. Pro Hac Vice

Ms. Lynn Whaley Vogel reported that the Board of Governors at its July meeting directed the committee appointed to review Missouri’s pro hac vice provisions to draft recommendations to amend Supreme Court of Missouri Rule 6.01(m) as it relates to pro hac vice fees and Rule 9.03 as it relates to the role of the in-state attorney in such matters. The committee was also directed to provide a recommendation as to the allocation of funds generated by the pro hac vice fees.

Ms. Vogel presented the following proposed amendment to Supreme Court Rule 6.01(m), which sets forth the pro hac vice fee. She noted that the proposed language was drafted so that pro hac vice fees would automatically increase when member dues are increased.

Supreme Court Rule 6.01(m) Pro Hac Vice Fee. An attorney seeking to
appear pursuant to Rule 9.03 shall pay a fee of $100 equal to the
annual enrollment fee fixed for category (1) lawyers, with the fee to
be paid for each case in each court or administrative tribunal in which
the attorney seeks to appear. The fee shall be paid to the clerk of this
Court, which shall transfer the fee to The Missouri Bar to be allocated
annually by the Board of Governors of The Missouri Bar to support
legal services, the legal profession and/or the justice system of Missouri.

It was moved and seconded to recommend the proposed amendment to Rule 6.01(m) to the Supreme Court of Missouri as drafted. The motion was approved.

Ms. Vogel further reported that the committee recommends that a memorandum accompany the proposed amendment to Rule 6.01(m) indicating that in the first year that the amendment takes effect, the Board of Governors would allocate to Legal Services an amount equal to that which it received the previous year, so long as the pro hac vice fees received equal that amount or more, and that of the remaining fees received, an additional amount would be allocated to Legal Services so that Legal Services would receive 80 percent of the total fees collected with the remaining 20 percent to be allocated to support public education about the judicial system. It was moved and seconded to approve the recommendation to send the memorandum including the language regarding the allocation as drafted.

A subsequent discussion focused on the issues that included the amount of the allocation designated to legal services, the increasing financial needs faced by legal services, the funding needs of other programs important to the justice system, the value of an annual allocation review process, and the uncertainty as to how much funding the proposed fee increase would generate. A friendly amendment was proposed but not accepted. A motion was made and seconded to amend the motion. The motion to amend was approved.

It was recommended that the allocation of funds generated by the pro hac vice fees included in the memorandum to be drafted and accompany the proposed amendment to Rule 6.01(m) be changed to express that it is the intent of the Board of Governors that Legal Services will in perpetuity receive a minimum allocation of pro hac vice funds equal to the 2010 allocation of such funds. If in any year, the pro hac vice fees generate a fund total in excess of the 2010 allocation level, the funds in excess of the 2010 allocation level will be split with 80 percent of the excess funds being allocated to Legal Service and 20 percent of the funds in excess of the 2010 level allocated at the Board of Governors discretion to areas delineated in Rule 6.01(m). Should in any year, the total funds generated by pro hac vice fees not reach the minimum 2010 allocation level to Legal Services, 100 percent of the pro hac vice funds generated in that year will be allocated to Legal Services. The amended
motion was approved. Mr. Wulff voted no.

Ms. Vogel also reported that the Pro Hac Vice Committee did not come to consensus regarding a recommended amendment to Rule 9.03 related to the role of the in-state attorney. She circulated three possible alternatives for review and comment. She also reported that the committee plans to continue working on this issue including seeking input from The Bar Plan as to any risk management repercussions related to changing the rule to reflect language used by other states as included in the three alternatives circulated.

B. Client Security Fund Committee

Mr. Chris Janku reported that the Client Security Fund Committee is recommending the payment of 21 claims for a total of $25,222.77 and the denial of three claims. He reported that the total payment of claims authorized to date is $47,322.77, which is well within the limit established under Article 2.10 of the rules and regulations governing the Fund. It was moved and seconded to approve the recommendation for payment of the claims as recommended. The motion was approved.

Mr. Janku further advised the Board of Governors of the Committee’s interpretation of Articles 1.5, 2.2(d) and 2.2(3) governing eligibility of claims. He reported that the Committee recommends that claims against lawyers suspended or not in “good standing” for failure to pay dues, MCLE non-compliance and tax non-compliance not be eligible for consideration under Article 2.2(d) if the alleged act under consideration by the Fund occurred during the initial three years that a lawyer is suspended under any of these three categories. He reported that the reason the Committee makes this recommendation is that lawyers are routinely retroactively reinstated to “good standing” if a suspension under any of these three categories is resolved within three years. In addition, it is recommended that such claims not be disqualified for consideration under Article 1.5, which provides that the fraudulent or dishonest act which is the basis of the claim must be committed at the time the lawyer is a member in “good standing” of The Missouri Bar. It was moved and seconded to approve the Committee’s interpretation and application to Client Security Fund claims. The motion was approved.

C. Fee Dispute Resolution Committee

Mr. Keith Birkes reported on the decision by the Bar Association of St. Louis to discontinue its fee dispute resolution program and the recent action by The Missouri Bar Fee Dispute Resolution Committee to begin accepting responsibility for the St. Louis region claims. He further reported that the Executive Committee reviewed and approved recommendations by The Missouri Bar’s Fee Dispute Resolution Committee intended to make the fee dispute resolution process more efficient in anticipation of handling an increased caseload, including increasing the minimum required jurisdictional amounts in dispute for cases to be eligible for the process. It was moved and seconded to ratify the Executive Committee’s approval of the changes recommended. The motion was approved.

D. Young Lawyers Section Council

Ms. Lauren Tucker McCubbin reported on various YLS projects and activities. The projects and activities included continued support for the Read Across America program and new initiatives that included distribution of bar exam survival kits, updating the citizenship activities coloring book, and a program developed with support of an ABA grant to recognize young lawyers who perform pro bono services. She also reported on a YLS affiliate outreach meeting held in August with YLS Councils representing Oklahoma, Kansas and Missouri bars, which included a session on how members can be more responsive to disasters such as the one that affected Joplin.

6. The Missouri Bar’s Website:

Ms. Sebrina Barrett reported that The Missouri Bar website is being remodeled and plans are underway to launch the site this fall. She reported that she would email a PowerPoint containing screen shots from the new website to board members and would welcome any feedback and suggestions.

7. Officers’ Reports:

A. President’s Report

Mr. John Johnston announced that Ruth Braun, the office manager for The Missouri Bar, retired after 26 years of service. It was moved and seconded to acknowledge and express how much the Board of Governors appreciates her years of service. The motion was approved.

(1) Merit Selection of Judges

Mr. Johnston reported on the recent Summit on Judicial Merit Selection held August 29 and 30 in St. Louis. He reported that 18 states were represented and that the Summit provided an excellent opportunity to share knowledge and information. He reported that retired Supreme Court Justice Sandra Day O’Connor spoke at the Summit. He noted that a listserve has been created to allow for communication and the continued sharing of information on the issues related to merit selection after the Summit. He noted that the listserve currently has subscribers from 23 state organizations, several national organizations and one international organization.

(2) Special Committee on Termination of Parental Rights in Adoption of the Undocumented

Mr. Johnston reported that this special committee, chaired by Larry Swall, has met several times and is proceeding nicely. He reported that he anticipates that the committee may have proposals for consideration by the Board of Governors at the November meeting, which may include proposed legislation.

B. President-Elect’s Report

(1) Missouri Bar Pro Bono Website

Ms. Lynn Whaley Vogel reported that the new Missouri Bar Pro Bono website is up and being used by lawyers. She reported that she has received some good feedback regarding this resource and anticipates building increased use in the future.

(2) Committee Chairs Orientation Meeting

Ms. Vogel reported that committee chair appointments are underway and that an orientation and training meeting for committee and section chairs has been scheduled in conjunction with the Annual Meeting. This orientation meeting is scheduled for Friday, September 23. She also reported that in addition to training efforts, the Committee Chairs’ Handbook has been completely revised, making it shorter, easier to use and available online.

(3) Board Liaisons to Committees

Ms. Vogel requested feedback from members of the Board regarding committee liaison positions. She reported that she is interested in reviewing how liaisons are matched with committees, the role of liaisons and how best to utilize liaisons to maintain communications between the committee chairs and the Board.

C. Vice-President’s Report

(1) Special Committee on CLE

Mr. Pat Starke reported that the Special Committee on CLE has met. He indicated that a review of the CLE programs and publications indicates that the CLE educational programs component has been breaking even, while the publication component has been running a deficit. He reported that the committee will continue its work and he anticipates that proposals to address revenue issues will be presented at the November meeting.

(2) Vision Committee

Mr. Starke reported that the Vision Committee has met and is in the process of reviewing the structure, organization, and functioning of the governance of The Missouri Bar, including the timing, locations and purpose of board meetings. He reported that everything related to this area is subject to review and encouraged members of the Board to communicate with members of the committee regarding any thoughts and ideas related to these issues. In addition, Mr. Starke, the chair, listed the members of the Vision Committee. They are P. John Brady, Hon. Charles Curless, John W. Grimm, Nancy R. Mogab, Brett W. Roubal and Raymond E. Williams.

D. Executive Director’s Report

(1) Missouri Bar Economic Survey
Mr. Birkes reported that the most recent Missouri Bar Economic Survey was included in the meeting materials and noted that the data indicate that lawyer income has gone down since the survey was conducted two years ago. He further reported that this is the first time lawyers have reported a reduction in income since the Bar began conducting the survey.

(2) Missouri Bar Executive Leadership Transition

Mr. Birkes reported that efforts to involve Sebrina Barrett in all aspects of The Missouri Bar leadership continue to expand and are going very well with Ms. Barrett continually assuming more responsibility. He reported that the transition is going very smoothly and Ms. Barrett is doing excellent work.

(3) Annual Meeting Highlights

Mr. Birkes gave a brief overview highlighting key events and programs at the Annual Meeting including the CLE plenary and track session programming and the social events.

8. Other Business:

Mr. John Johnston introduced and welcomed newly elected members of the Board.

9. Acknowledgement of Retiring Board Members:

Mr. John Johnston offered comments and presented plaques honoring the retiring Board members for their service on the Board of Governors. The following Board members were recognized:

Steven R. Bough
Jennifer M. Joyce
Marie A. Kenyon
Hon. Karen King Mitchell
Deanna K. Scott
Allan D. Seidel
H. A. “Skip” Walther

Ms. Lynn Whaley Vogel recognized Missouri Bar President John Johnston for his leadership during the 2010-2011 bar year.

There being no further business, the meeting was adjourned.

Respectfully submitted,

_______________________________________
Keith A. Birkes, Secretary