Board of Governors Meeting -- July 20, 2012
July 20, 2012
Big Cedar Lodge, Branson
Lynn Whaley Vogel, President
Patrick B. Starke, President-Elect
P. John Brady, Vice-President
John S. Johnston, Past President
Keith A. Birkes, Secretary
Bevy A. Beimdiek
Thomas V. Bender
Suzanne B. Bradley
Hon. Richard Bresnahan
Robert J. Buckley
Dennis J. Capriglione
Mark W. Comley
Hon. Charles Curless
Dana Tippin Cutler
Joel R. Elmer
Genevieve M. Frank
John W. Grimm
James H. Guest
Richard F. Halliburton
Edward J. Hershewe
Hon. James F. Kanatzar
Robert S. Kenney
Hon. John F. Kintz
J. B. Lasater
Mark H. Levison
Neil F. Maune, Jr.
Lauren Tucker McCubbin
Max E. Mitchell
Nancy R. Mogab
Hon. Mark H. Neill
Douglass F. Noland
Joseph P. Rice, III
Brett W. Roubal
Walter R. Simpson
Antwaun L. Smith
W. Douglas Thomson
Raymond E. Williams
Eric J. Wulff
Present by Telephone:
Vincent F. Igoe, Jr.
Hon. Richard B. Teitelman
It was moved and seconded that the minutes of the meetings of the Board of Governors and Executive Committee of May 11 be approved. The motion was approved.
Mr. Eric Bergmanis reported on the financial status of The Missouri Bar. He reported that 45 percent of the budget has been expended with half of the year completed. He noted that large expenditures are expected for e-commerce, annual meeting and public information in the second half of the year. He further reported the Bar is on course to end the year within budget. He also noted that budget surpluses are not expected. He further noted that Missouri Bar CLE reports a positive balance as of the end of May and this includes an increase in revenue generated by the Publications Department. Mr. Bergmanis reported that The Missouri Bar received $3,000 in revenue from Pro Hac Vice funds generated in 2012. He reminded the board that a change in the fee levels charged to lawyers seeking to appear under Rule 9.03 which went into effect on January 1, and under the new allocation formula approved by the board last September, Pro Hac Vice funds generated in excess of a 2010 threshold earmarked for Legal Services are now split with 80 percent of the funds in excess of the threshold to Legal Services and 20 percent to The Missouri Bar to be used at the board’s discretion.
Mr. Bergmanis reported that the auditing firm of Williams Keepers LLC issued it opinion that the financial statements present fairly, in all material respects, the financial position of The Missouri Bar as of December 31, 2011 and 2010. It was moved and seconded that the Williams Keeper LLC audit report be approved. The motion was approved.
He also reported on the budget for the Annual Meeting, noting that the mid-year budget projects higher revenue and lower expenses. It was moved and seconded that the 2012 Annual Meeting mid-year budget projection be approved. The motion was approved.
Ms. Catherine Barrie provided a brief report regarding final actions by the governor on two bills that were passed in the 2012 legislative session. She reported that the governor vetoed HB 1758, a measure that would allow a person, who is not a biological or legal parent, but has established a parent/child relationship with a minor child, to petition for custody and visitation rights. This legislation had been submitted to the board by the Family Law Section last fall, but did not receive the two-thirds vote required to proceed as bar-drafted legislation. The legislation was subsequently introduced (not as bar endorsed) and passed by the General Assembly.
Ms. Barrie further reported that the Governor took no action on the Truly Agreed to and Finally Passed SB 628, which contained a significant number of provisions related to the judiciary and bar-drafted provisions relating to qualified spousal trusts and trust protectors. She explained that under the Missouri Constitution, a governor can sign, veto or take no action on a bill that has been finally agreed to and passed by the legislature. If the governor chooses to take no action within the prescribed constitutional time period, the bill goes to the Secretary of State, who enrolls the bill as an authentic act and it then becomes law.
Ms. Barrie also reported that four bar-drafted measures were in the agenda for review, but no action. Action will be requested in October on these proposal pursuant to the Board of Governors’ Policy Statement Regarding Legislative Procedures, as updated and approved at the February, 2012 Board meeting. Two of the new bar-drafted measures were submitted by the June 15 deadline for the 2013 legislative session: A bill drafted by the Commercial Law Committee amending the statute related to the transcript of judgments rendered by associate circuit courts. The second bill, drafted by the Probate and Trust Law Committee, amends §513.430.1 to clarify that inherited IRAs and HSAs are exempt from creditor claims. Two additional measures, submitted after the June 15 deadline, were approved by the Executive Committee for submission to the Board of Governors at the October Board meeting: the Criminal Code Revision, submitted by the Criminal Code Sub-Committee, and a proposal relating to post adoption agreements, originally drafted and submitted by The Missouri Bar’s Special Committee on the Termination of Parental Rights in Adoption. Both of these measures had been approved by the Board as bar-drafted legislation in 2012, however, neither bill passed in the 2012 legislative session.
4. Committee Reports:
- A. Board Liaison Reports
- (1) Alternative Dispute Resolution Committee
Mr. Mike Igoe reported that the ADR Committee is very active. He reported that the committee regularly holds meetings at both the fall and spring committee meetings drawing good attendance. He noted that the committee typically includes CLE at these meetings and regularly makes presentations at other CLE venues, including the Solo & Small Firm Conference. He reported that the committee has been focusing on assisting with changes to Rule 17 and stand ready to assist further, including assisting in developing programs to communicate any changes to members of the bar.
- (2) Paralegals Committee
Hon. John Kintz reported that the Paralegal Committee is chaired by lawyer Suzanne Kissock, who teaches paralegal studies at Missouri State University. He reported that the committee usually tries to have a meeting at the spring and fall committee meetings and often include a CLE component. He noted that plans are underway to include a CLE on ethics for paralegals at the November 2012 Fall Committee meetings. As to future initiatives, Judge Kintz reported that the committee plans to study the regulatory processes for paralegals in other states and anticipates that the committee will provide a report on this in May. In addition, the committee is exploring the idea of proposing associate membership of paralegals within The Missouri Bar as a way to gain more involvement by the paralegal community. The committee also plans to consider whether to propose the creation of a “Paralegal of the Year Award” to be presented at the Annual Meeting.
- (3) Lawyers Assistance Committee
Mr. J.B. Lasater reported that this committee is chaired by Gary Burger, a very enthusiastic leader. He noted that the committee is small, but very active. He reported that the committee had given some consideration to making a recommendation that there be a general CLE requirement on the subject of impairment, so more attorneys understand that the issues go beyond drug, alcohol and mental health and include matters facing the aging of lawyers in the profession. He noted that after consultation with OCDC, a decision was made to develop instructive videos to include on The Missouri Bar website and to make available as a resource for those conducting CLE on the subject.
- (4) Construction Law Committee
Mr. Mark Levison reported that he was not able to make contact with the chair of the Construction Law Committee prior to this meeting. No report.
- (5) Juvenile Courts & the Law
Mr. Neil F. Maune, Jr., reported that Jill Katz is chair and that she is doing a great job, reinvigorating a committee that had been relatively dormant. He reported that there had been some discussion in the past to merge this committee with the Family Law Section. Ms. Katz is not in favor of such a merger, noting that the Section requires annual dues and the younger attorneys who make up a large portion of those involved in juvenile law would likely find this an obstacle to their participation. He reported that the committee does work with the Family Law Section as they share many issues. He noted that the committee has conducted seven GAL training sessions with members of the Family Law Section and plan an additional eight more by the end of the year. The committee is helping establish uniformity among judicial circuits in regards to GALs in the state and has established an advisory committee to provide assistance to GALs, courts, and families involved in the juvenile system.
- (6) Young Lawyers Section
Ms. Lauren Tucker McCubbin reported that Amy Bender-Levy is the chair of the YLS. Ms. McCubbin noted that in addition to the regular activities of the YLS, which she reports in her regular overview as the YLS representative on the Board of Governors, she wanted to report on a group of other activities the Section is engaged in. She reported that the YLS engages in community service and outreach programs that include the annual “We the People” civics education program, “Read Across America” and an annual essay contest. She also noted that the YLS is responsible for a number of resources for the public which include a Domestic Violence Prevention handbook, a New Lawyer Survival Guide, a Public Defender Guilty Plea handbook, and a Disaster Relief Manual. She also noted that the YLS plays an important role as liaison with law schools and law students and engages in activities designed to assist those entering the bar, including YLS participation in both enrollment ceremonies, including welcoming new admittees. She noted that the YLS also distributes survival kits for the bar exam. She also reported that the YLS maintains its own website and produces a quarterly e-newsletter. She reported that the YLS Council will convene during this meeting with agenda items that include voting for annual awards, discussing the “New Lawyer Practice Management Series” and the post-Best of Missouri YLS social gathering at the upcoming Annual Meeting.
- (7) Immigration Law Committee
Ms. Mira Mdivani was not present for the meeting, but provided a written report that was distributed to the Board of Governors regarding the many activities of the Immigration Law Committee.
- (8) Probate & Trust Law Committee
Mr. Max E. Mitchell reported that this committee is chaired by Professor English, who is a very active and well thought of expert in the area of probate and trust law. He reported that the committee is also very active in the areas of legislation, including the review of legislation that impacts this area of law, but also in drafting legislation to improve this area of law in Missouri. The committee is interested in and remains current on cutting-edge issues relevant to the area of law, a recent example being the development of digital asset protection. He noted that the committee is actively involved in providing CLE through avenues such as an annual institute, as well as at the annual meeting and the fall and spring committee meetings.
- (9) Client Security Fund Committee
Mr. Mitchell also reported on the Client Security Fund Committee praising the work in support of this committee by staff and also commending the work of the entire committee and chair Scott Robbins. He noted that this committee works hard throughout the year, holding two to four meetings, with its responsibility of grappling with the difficult issues related to Fund reimbursement of individuals who have been harmed by lawyers.
- (10) Workers’ Compensation Law
Nancy R. Mogab reported that Administrative Law Judge Tim Wilson is the chair of this committee and does a fine job. She reported that this is an active committee, which typically meets at both the fall and spring committee meetings, offers a CLE component to these meetings and attracts good attendance. She reported that its Legislative Committee is very active and responsive. She noted that the CLE Committee develops an annual stand-alone CLE program that is presented at five locations around the state and this year an Ad Hoc Committee has been formed to review written resource materials including a workers’ compensation brochure and the MoBarCLE deskbook.
- B. Strategic Plan Subcommittee Reports
The chairs of each Strategic Plan Subcommittee provided a brief verbal report, accompanying the more detailed written reports which were submitted and included in the meeting packet.
- (1) Goal I – To promote the highest standards of professionalism, competence, and ethical conduct among the legal profession in Missouri.
Chair Brett Roubal reported that in reviewing this goal, the committee concluded that its original objectives were well stated and objectives are widely promoted in a variety of different ways by The Missouri Bar as an underlying foundation permeating bar activities, communications and board leadership initiatives. And these initiatives produce tangible results. The committee suggested some additional strategies for this goal. These include acknowledging the KCMBA Civility Summit and emulating this across the state.
- (2) Goal II – To provide ongoing leadership in improving the law to serve the changing needs of society.
Chair Jack Brady reported on changes made to the current legislative review process and timing for annual submission of proposed bar committee drafted legislation, noting that the new timing is intended to allow more time for the Executive Committee and board to understand and consider the details of the legislation being proposed including having more time to benefit from expertise within the bar regarding the intent and likely result of the measures being submitted. He also reported that the committee revisited the methodology and criteria for determining scope and has concluded that no change should be made in this area. Finally, the committee discussed the importance of initiatives such as the mini law school, developed by Nancy Mogab, and to consider expanding that program to more areas within the state and also expanding focus on how to use evolving technology to communicate and educate the public regarding legislative changes and the role of the third branch.
- (3) Goal III – To promote legal services for everyone.
Chair Bevy Beimdiek reported that the committee reviewed the strategic objectives and a wide range of programs that have been newly initiated or expanded since this objective was established, programs that facilitate making lawyers aware of pro bono needs of organizations serving low-income citizens, expanded and new acknowledgement efforts, and making pro bono a prominent communication narrative from the bar. She also reported that the committee has identified a broad range of preferences among lawyers when it comes to public acknowledgement of their efforts and that initiatives should consider and speak to the full spectrum of principles among members of the Bar. She also noted that the committee believes the Bar should continue to support funding for legal services and challenges facing the public defender system.
- (4) Goal IV – To increase public understanding of the law, the legal process, and the role of the profession, and to promote mutual respect between the public and the profession because the impartiality and fairness of the courts depends on the informed citizenry that understands the underlying principles of our government.
Chair Dana Tippin Cutler reported that the committee reviewed the strategies to evaluate whether The Missouri Bar was meeting the objectives. It was concluded that the Bar is meeting the objectives. However, the committee, in its evaluation process, concluded that many of the strategies originally articulated overlap and are redundant in many cases. In addition, it was noticed that a number of the strategies were task oriented, rather than conceptual. As a result, the committee proposed changes to remove redundancies and change tasks into conceptual objectives. In doing so, they propose reducing the strategies under this topic from the original 10 strategies articulated to five strategies. The proposed revised strategies are included in their written report.
- (5) Goal V – To promote benefits, programs, and services which promote the ethical, professional and personal growth of all members.
Erik Bergmanis reported that the committee discussed a number of possible expansions to the original strategies to better promote the benefits, programs and services offered by The Missouri Bar to members. These included continuing to review and develop ways to help new lawyers successfully assimilate into the practice of law, including finding employment; to consider if MOLAP could develop methods or provide insights about identifying problem behavior among members at an earlier stage and intervening before members get into serious trouble; the expansion of member services to focus more on technology within the profession; communicating job placement success stories resulting from MoBar resources; upgrading the Missouri Bar print shop; and exploring new ways to communicate members benefits, such as videotaping presentations, such as the presentations that Lynn Ann Vogel and Sebrina Barrett conducted at bar associations across the state, for broader dissemination; and also to propose listing information about bar services on the annual enrollment card, including mention of the Bar’s website URL.
- (6) Goal VI – To promote integrity and adequate funding for the justice system.
Chair Pat Starke reported that the committee reviewed and continues to support the strategies identified in this area, particularly in regards to improved salaries for the judiciary. He noted that the committee agreed that systems should be put in place to sustain the relationships being established with key members of The Missouri Bar and members of the legislature after this year’s specific initiatives responding to challenges to the non-partisan court plan, so long-term relationships can be maintained for future issues relevant to The Missouri Bar, the courts and the justice system.
- C. Insurance Programs Committee
Ms. Linda Oligschlaeger reported that The Bar Plan is seeking board approval to add an enhanced AD &D benefit to The Missouri Bar Group Term Life Insurance Program. She explained that the enhanced product would include the expansion of AD&D benefits for members, spouses/domestic partners and their children as well as travel assistance service programs through ING. She reported that the enhanced product has been reviewed by The Missouri Bar’s Insurance Programs Committee and the committee recommends approval. She noted that the written detailed information has been provided in the meeting packet. It was moved and seconded to approve the addition of the enhanced AD&D benefit to The Missouri Bar Group Term Life Insurance Program. The motion was approved. John Gunn abstained from the vote.
- D. Leadership Academy
Academy co-chairs Angela Alvarez Simmons and Jerri J. Zhang reported on the activities of this year’s 2011-2012 class and introduced its members. Each individual member reported their two-year commitment to the Bar, which will commence following the end of their term. Chris Lebeck provided a report regarding the group’s annual project, which is an educational program focusing on five issues related to safely interacting with the Internet. He explained that the program, targeting grades 5 and 6, include education about good choices on the Internet, social media safety, texting and the permanent nature of such interactions and information shared online. The resource materials include lesson plans, student assessments, PowerPoint presentations and learning activities for use by teachers. The project also includes an additional overview of the project, explaining its purpose and goals to parents, school districts and school administrators. Distribution will be enhanced through collaboration with The Missouri Bar’s civic education contacts. It was moved and seconded to approve the marketing and dissemination of the project materials to schools and school districts. The motion was approved.
- E. YLS Council
Ms. Lauren Tucker McCubbin reported during committee reports.
- A. July Appointments
There were no appointments for July.
- B. October Appointments
(1) Trustees of The Missouri Bar
Mr. Keith Birkes reported that Mr. John Ruth’s second term is expiring and he is not eligible for reappointment. He asked members of the board to share any recommendations for the position. He explained that typically the treasurer of the Trustees is from central Missouri, as close proximity to Jefferson City is helpful in dealing with the business of the group. The appointment will be made at the board meeting in October.
6. Candidates’ Forum:
Candidates for the office of Vice-President were allocated time to address the Board. The candidates – Mark Levison, Nancy Mogab, Dennis Capriglione and Reuben Shelton – individually discussed their background and qualifications for board leadership.
7. Officers’ Reports:
- A. President’s Report
- (1) Practical Skills Substantive Law Podcasts
Ms. Lynn Whaley Vogel reported that the Lawyers in a Changing Economy Committee seeks volunteers to present a brief 10 -15 minute podcast covering the “nuts and bolts” on substantive areas of law. She noted that this initiative is especially vital to new attorneys and indicated that members of the board who are interested should contact the committee chair Ray Williams. Mr. Williams also noted that board members are asked to share their ideas for substantive areas that should be the subject of these new educational podcast resources.
- (2) Annual Meeting
Ms. Vogel thanked the Annual Meeting Planning Committee, co-chaired by Reuben Shelton and Dorothy White-Coleman. She reported that all of the programming is in place with a host of plenary and track programs included. She also noted that there will be an Annual Meeting smart phone app for this meeting. She noted that there are plans to have a special toast in tribute to Keith Birkes during the Best of Missouri Reception at the Peabody Opera House. She also noted that Robert Clayton and Jennifer Gille Bacon are chairing a committee that is developing other recognition activities in honor of Mr. Birkes, including a dinner in November prior to the Fall Committee Meetings, allowing a more private recognition that includes the Board of Governors.
- (3) Senior Counsel Section
She reported that the Senior Counsel Committee is going well and that there have been two meetings of the group. It is anticipated that they will be in a position to implement related programs next year.
- B. President-Elect’s Report
- (1) Non-Partisan Court Plan
Mr. Pat Starke reported that one of the projects he foresees for next year will be to develop an ongoing “key” person program which naturally flows from current efforts and relationships being established with legislators in response to the current challenges and attacks on the Non-Partisan Court Plan. Mr. Starke noted that additional details will be included during the executive session. However, he reported that the program would seek to establish ongoing relationships between members of The Missouri Bar and members of the House and Senate. He explained that the concept would be to establish key relationships that will be fostered on a long-term basis, so The Missouri Bar can influence issues related to the administration of justice more effectively at a grassroots level, including issues that arise beyond just the Non-Partisan Court Plan. He explained that the long-term nature of the relationships will mean that new connections will not have to be made every time an issue arises which impacts the bar or its mission. He noted that the establishment of this “key person” concept will require the engagement of members of The Missouri Bar beyond the Board of Governors. He noted that he is interested in meeting individually with members of the board to begin the process of identifying key members of the bar within each board member’s district who can be matched with current legislators, as well as likely political challengers to current legislators. He further explained that this type of grassroots approach has been successfully implemented by other organizations and their efforts and success will serve as a model.
Mr. Starke also mentioned that next year will be marked by physical and personnel changes at The Missouri Bar. He noted that Keith Birkes and several key staff members will be retiring and that these changes will likely require some realignment and reshuffling led by incoming Executive Director Sebrina Barrett. He also noted that the Trustees of The Missouri Bar have authorized the addition of a new floor to be added atop the current Bar Center, commenting that the construction may result in some disruptions, but when completed will be a valuable addition for the entire bar.
He identified several other projects including the efforts to implement a major revision of the criminal code. He also commented on the challenges and struggles surrounding the redistricting of legislative districts in Missouri, noting the recent problems encountered that involved forcing action by Missouri’s judiciary. He reported that he would like to establish a task force to look at how the redistricting process might be changed, so the process works better and does not produce the types of problems encountered this year, citing processes used in other states including Iowa which may serve as a model. It was moved and seconded to establish a Task Force on Legislative Redistricting. The motion was approved.
Mr. Starke reported that he will announce the location for the Mid-Year Meeting at a later time.
- C. Vice-President’s Report
Jack Brady reported that he has been focusing attention on meeting with large firms around the state to help make them aware of the challenges facing the Non-Partisan Court Plan, The Missouri Bar’s efforts in support of the plan, why these efforts are important to these firms and how they can support the efforts.
- D. Executive Director’s Report
- (1) Board of Governors Elections
Mr. Keith Birkes reported that ballots for the Board of Governors elections are being mailed today to members residing in districts where there are contested elections. He further reported that the ballots will be counted on August 15 and that the results are usually certified by the Clerk of the Supreme Court by late afternoon at which time those standing for election will be notified as to the results.
- (2) Theodore McMillian Award Nominations
Mr. Birkes directed attention to nomination forms for the Theodore McMillian Judicial Excellence Award. He reported that the recipient is selected by the Executive Committee and nominations are made by members of the Board of Governors. He requested that members of the board submit their nominations within 10 days. He also noted that the form would also be emailed to all board members at the beginning of the next week, along with a list of past recipients.
- (3) Executive Director Transition Report
Mr. Birkes reported that the transition process with Deputy Executive Director Sebrina Barrett continues to go very well. He reported that the board has selected a wonderful person to succeed him at the helm of the Bar, noting her exceptional grasp of the Missouri Bar, its staff and its objectives. He reported that Ms. Barrett is completely in charge of the staff transitions underway, that he and Ms. Barrett are fully sharing leadership responsibilities and that The Missouri Bar is very fortunate to have Ms. Barrett in leadership.
- E. Deputy Executive Director’s Report
- (1) Addition to Missouri Bar Center
Ms. Sebrina Barrett reported that the Trustees of The Missouri Bar approved the recommendation to expand the physical structure of The Missouri Bar Center by adding an additional floor to the structure. She reported that she and Keith Birkes will be meeting with the architects next week to begin the detailed process involved in the expansion.
- (2) Director of Members Services Transition
Ms. Barrett reported that efforts are underway in the process to hire a new Director of Members Services to succeed retiring director, Linda Oligschlaeger. She noted that the position has been publicized and she and Ms. Oligschlaeger have been reviewing resumes and identifying candidates to interview. Ms. Barrett reported that the objective would be to hire someone to begin duties on October 1, so there would be time to have an orderly transition before Ms. Oligschlaeger retires at the end of the year.
- (3) Electronic Option for Meeting Material Dissemination
Ms. Barrett called attention to a form circulated in the meeting materials, allowing members of the board to select the method of receiving board meeting materials in the future. She noted that members of the board have the option of receiving materials electronically, by mail or both.
8. Executive Session:
At this time, the Board of Governors went into executive session to discuss initiatives to educate the public on matters related to Amendment 3 and its proposed changes to the Non-Partisan Court Plan.