Related Navigation

Board Minutes - November 22, 2013




Friday, November 22, 2013

Jefferson City Capitol Plaza Hotel



Members present:

P. John Brady, President

Reuben A. Shelton, President-Elect

Erik A. Bergmanis, Vice-President

Patrick B. Starke, Immediate Past President

Sebrina A. Barrett, Secretary


Bevy A. Beimdiek

Amy Bender-Levy

Suzanne B. Bradley

Robert J. Buckley

Nicole Colbert-Botchway

Morry S. Cole

Mark W. Comley

Hon. Charles Curless

Dana Tippin Cutler

Joel R. Elmer

Brian Francka

Genevieve M. Frank

Michael E. Gardner

Wendy Garrison

John W. Grimm

James H. Guest

Hon. John F. Kintz

Mark H. Levison

Gregg F. Lombardi

Neil F. Maune, Jr.

Karen McCarthy

Lauren Tucker McCubbin

Mira Mdivani

Max E. Mitchell

Nancy R. Mogab

Douglass F. Noland

Joseph P. Rice, III

Brett W. Roubal

Tricia M. Scaglia

Deanna K. Scott

Walter R. Simpson

Zachary R. Thompson

W. Douglas Thomson

Raymond E. Williams

Eric J. Wulff


Present by telephone:

Thomas V. Bender

John R. Gunn

Edward J. Hershewe

J. B. Lasater

Joan M. Swartz


Members absent:

Robert J. Buckley

Patrick B. Starke


Others present:

Millie Aulbur
Catherine Barrie
Lucas Boling
Anne Chambers
Farrah Fite
Kent Hopper
Chris Janku
Jeff Markway
Cindy Neagle
Hugh O’Donnell
David Purcell
Delores Shepherd
Robert Stoeckl

Gary Toohey
Eric Wilson




1.            Welcome: 

Mr. Jack Brady welcomed new board member Zachary Thompson. Mr. Thompson was elected to fill the one year remaining on Pat Starke’s term as the board representative in District 8. The vacancy resulted when Mr. Starke became past president upon the conclusion of the 2013 Annual Meeting. The vacancy was filled by a District 8 special election. 

2.            Minutes:


               It was moved and seconded that the minutes of the 2012-2013 and the 2013-2014 Board of Governors meetings of September 18, 2013 and the minutes of the Executive Committee meetings on September 19 and September 20 be approved. The motion was approved.



3.            Appointments:


               A.           November Appointments


                              (1)          Judicial Performance Evaluation Committee

(a)          6th Judicial Circuit (Platte County)


Mr. Jack Brady reported that Mr. Kenneth Brown and Mr. Brad Meyer have been nominated to fill two non-lawyer vacancies on the Judicial Performance Evaluation Committee for the 6th Judicial Circuit (Platte County).


(b)          7th Circuit (Clay County)


Mr. Brady further reported that Ms. Angie Borgedalen has been nominated to fill a non-lawyer vacancy on the Judicial Performance Evaluation Committee for the 7th Judicial Circuit (Clay County).


It was moved and seconded to approve the nominations for the 6th and 7th Judicial Circuit Judicial Performance Evaluation Committee vacancies. The motion was approved.


(2)          Complaint Resolution Committee


Mr. Brady reported that Mr. James Condry’s term on the Complaint Resolution Committee is expiring, that he is eligible for reappointment and is willing to serve another four-year term.  It was moved and seconded to approve the reappointment of Mr. Condry. The motion was approved.


                              (3)          Client Security Fund Committee


Mr. Brady reported that Ms. Julia Grus’ term on the Client Security Fund Committee is expiring and she is eligible for reappointment and willing to serve. It was moved and seconded to approve the reappointment of Ms. Grus. The motion was approved.


                              (4)          Press-Bar Commission


Mr. Brady reported that Mr. Mark Sableman’s term on the Press-Bar Commission is expiring and that he is eligible for reappointment and willing to serve. It was moved and seconded to approve the reappointment of Mr. Sableman. The motion was approved.


                              (5)          Court Automation Committee


                                             Mr. Brady reported that Mr. Joe Bednar is resigning as a member

of the Missouri Court Automation Committee. He reported that The Honorable Stephen Nixon has been nominated to succeed Mr. Bednar. It was moved and seconded to appoint former Judge Nixon to this committee. The motion was approved.                  


B.           February Appointments


                              (1)          Lawyer to Lawyer Dispute Resolution Committee


Mr. Brady announced that two vacancies on the Lawyer to Lawyer Dispute Resolution Committee will be filled at the February board meeting. He reported that Judge Gary Lynch and Ms. Janet Thompson will voluntarily resign from the committee to allow for the staggering of terms among committee members. Their resignations will become effective upon the approval of the new appointments in February. Mr. Brady requested nominations to fill both vacancies and encouraged board members to consider nominating lawyers from the St. Louis area and outstate for geographic balance.



3.            Officers’ Reports:


A.           President’s Report  

(1)             Update on Special Committees

(a)          Joint Commission on Women in the Profession

Mr. Bill Bay, who serves with Megan Phillips as co-chair of both the Missouri Bar and Supreme Court of Missouri Joint Commission on Women in the Profession and the Missouri Bar Women in the Profession Committee, reported that Commission and committee activities are well underway. He announced that a CLE program focusing on pay equity will be presented in April in St. Louis and another program focusing on implicit bias is planned for the fall. He further reported on efforts to work with law schools and law students. Mr. Bay reported that the Commission has designed and will launch a website in mid-January. The site will provide information and links to resources for women lawyers, feature profiles of accomplished women lawyers and include a blog focused on latest developments. He reported that the committee held its first meeting today and featured a CLE program presented by MU law professor Erin Hawley, who spoke on the history of women in the law. He noted that the statistics provided by Prof. Hawley were eye-opening and that this information will be provided online. He reported that approximately 25 members attended the meeting and presentation and he predicted that the work of the Commission has the potential to make a real difference for many Missouri lawyers.


Mr. Brady further reported that the leadership of the Commission has recommended an increase in the number of appointed members from 16 to 20. Mr. Brady noted that action would be needed by the Board of Governors and the Supreme Court of Missouri to authorize such an expansion. It was moved and seconded to approve the recommendation and to authorize the appointment of two additional members by The Missouri Bar, if the expansion is approved by the Supreme Court of Missouri. The motion was approved. Mr. Brady reported that this board action would be communicated to the Supreme Court of Missouri.


(b)          Relevance Committee

Mr. Brady reported that members of the Relevance Task Force met with members of the Court, Leadership Academy, YLS and several members of the Board of Governors. The Task Force also concluded that it could best fulfill its mission by establishing two subcommittees. One subcommittee, chaired by Mr. Shelton, will focus on how to make The Missouri Bar more relevant to citizens of Missouri including the expansion of successful programs currently  in place such as the mini law schools developed by Governor Mogab along with other forms of public outreach. The second subcommittee, led by Mr. Bergmanis, will focus on issues of relevance related to members of The Missouri Bar through initiatives involving training to help lawyers become more efficient, productive and successful, and expanding some of the work that Governor Williams began in the form of developing training through vehicles such as podcasts and webinars on legal topics for practitioners.


He noted that these relevance initiatives will be ongoing with the initial work establishing structures that address public outreach and practitioner relevance for today, but with the intent that structures and activities will be reviewed annually and continually adapted to the changing needs in the future. He also noted that it will require the talents of the board as well as the talents of members throughout The Missouri Bar to make this effort successful. Mr. Brady reported that Mr. Shelton and Mr. Bergmanis will provide an update on these efforts at the February board meeting.


(c)          Committee on Committees, Analysis of Structure and Scope

Mr. Brady reported that an analysis is also underway to review the committee structure and individual committee scopes in relation to their relevance to today’s practice of law. He reported that Ms. Dana Tippin Cutler is chairing this board committee. He reported that the members of this committee met in Jefferson City and reviewed committee scopes and identified a process to gather information from committee chairs regarding these relevance issues. He noted that many committee scopes simply do not reflect the current practice of law and need updating. He noted that this board committee will report on the information gathered through this analysis at the February meeting and he anticipates they will make recommendations regarding action to change, combine and/or dissolve committees and on action to change any committee scopes in May.


(d)          Strategic Vision Committee

Mr. Brady reported that this committee is expanding on some of the work of last year’s Governance Committee, focusing on the relevance of the Board of Governors. Ms. Cutler explained that this committee will be looking at board activities and processes and the relevance of the strategic plan and future vision in relation to the current practice of law and needs of the legal profession. She also noted that the work of this committee and the committee analyzing the relevance of committee structures and scopes are likely to overlap in many regards. She reported that members of the Board of Governors will be getting a telephone call or visit from members of the Strategic Vision Committee to conduct an interview. Ms. Cutler anticipates reporting on the information and trends identified from the interviews with members of the board, so this information can be used to guide the direction going forward.


                              (2)          Winter Meeting


Mr. Brady reported that the winter board meeting will be held February 20 and 21 at the Hotel Sorella at the Plaza in Kansas City.


(3)   Third Floor Construction at The Missouri Bar Center

Mr. Brady reminded members of the Board that the Missouri Bar Center, the Annex Building and the Print Shop are owned by the Trustees of The Missouri Bar. He reported that despite the recent addition of a third floor and the significant expansion of usable square footage for use by The Missouri Bar, the rent for the headquarters facilities will only increase slightly from $2.50 per member/per year to $2.75 per member/per year. He noted that the Trustees of The Missouri Bar are responsible for the cost of outside maintenance of the bar facilities and anticipate some needed maintenance expenses in 2014.  The rent increase was included in the 2014 budget.


               B.           President-Elect’s Report


Mr. Reuben Shelton reported that he continues to travel and make presentations on behalf of The Missouri Bar around the state, noting that he has spoken at the Legal Services of Southern Missouri retreat and made a second presentation to the Missouri chapters of the Association of Corporate Counsel (ACC). He reported that he encouraged corporate counsel to become active in the Bar and he discussed the potential challenges to the Nonpartisan Court Plan in 2014. He reported that the corporate counsel segment expressed support for the nonpartisan selection process, both in the form of time and resources. 


Mr. Shelton reported that he also attended a meeting of the Southern Conference of Bar Presidents and participated in The Missouri Bar Executive Committee retreat.


He reported that he recently met with Ms. Nancy Mogab, who chaired the Board’s Governance Committee, to discuss exploration of a public outreach strategy for The Missouri Bar. He indicated public outreach could include incorporating the lay person perspective into the Board of Governors, explaining options that range from creating a Citizens Advisory Council to adding lay person(s) to the board, and he noted that there are examples of both practices at bar associations in other states. He reported that public outreach involvement would be assigned to one of the special committees related to governance or strategic vision for further exploration.


               C.           Vice-President’s Report


Mr. Bergmanis reported that he recently attended media training and joined Mr. Shelton at the Southern Conference of Bar Presidents. He commented on the challenges facing the non-partisan judicial selection process in Kansas and commended the work of Missouri Bar leadership over the past year for developing the Amicus Lex program as a valuable resource should efforts be required to defend against attacks to the Non-Partisan Court Plan in 2014.


He reported that he will be working with Mr. Ray Williams to further expand and develop the practice related podcasts for lawyers. He encouraged members of the Board of Governors to volunteer to help with this project.


Mr. Bergmanis also reported that plans are underway for a 2014 Legislative Day, building on the success of last year’s effort. He reported that the tentative format will be similar to 2013, starting with a dinner and training. Participants would be assigned to teams and would visit legislators the following day, with the goal of conveying the bar’s willingness to serve as a resource to lawmakers. He encouraged members of the board to put the April 1 -2 dates on their calendars and plan to participate.


Mr. Bergmanis further reported on a meeting he had with Sen. Bob Dixon and Rep. Stanley Cox related to the proposed legislation to revise the criminal code. He noted that Sen. Dixon requested that the Bar assist in conveying to legislators the widespread support for the revisions from both sides of the criminal justice system – prosecution and criminal defense – and from The Missouri Bar.  He reported that a letter will be sent to members of the Amicus Lex group, asking this group to reach out to legislators in support of the code revision. Mr. Bergmanis will also communicate this request to prosecutors and public defenders and he encouraged members of the Board of Governors to write letters in support.


D.           Executive Director’s Report


Ms. Sebrina Barrett provided a brief overview of significant accomplishments during the past year as well as some of the challenges anticipated in 2014. She commended The Missouri Bar staff for their work in achieving the many accomplishments during her first year as executive director. The accomplishments included the addition of the new third floor conference level at the Missouri Bar Center, offering additional space for members of the bar to gather and use as another Missouri Bar resource.


She further reported on the approval of an enrollment fee increase that will allow the Bar to continue to provide a high level of services and resources to member of Missouri’s legal profession. She noted the successful completion of key staff transitions with Kent Hopper transitioning to Director of Finance, Lucas Boling as the new Member Services Director and the hiring of Assistant CLE Director Cindy Neagle. She reported on the successful IT implementation of e-Commerce. She further reported that the Bar has absorbed the finance and accounting management of The Missouri Bar Foundation and launched a new Foundation website, which includes an online contribution option. She noted that a new Non-Partisan Court Plan video was produced and reminded Board members that the video is online and can be used as an effective communication resource for the public. She concluded with mention of last year’s very successful Legislative Day.


Ms. Barrett also outlined key challenges anticipated in the coming year, which included the possibility of fighting two initiative petitions attacking the Non-Partisan Court Plan. She noted that the proponents of these petitions have until May 4 to gather 157,000 signatures in eight Congressional Districts for each petition to appear on the ballot. She reported that these petition initiative efforts will be watched closely and efforts to defend against attacks on the non-partisan selection process will be launched, if needed. She also reported on the work needed to support and pass the revision to the criminal code. She noted that a staff committee has been formed to analyze and develop a plan for the future of The Missouri Bar’s print shop and she indicated the Finance Committee will keenly focus on the CLE programs and publications budgets with the goal of keeping both at a break-even level while responding to increased competition from CLE providers who are offering deeply discounted rates. 



4.            Legislation:


Mr. Brady called attention to a summary of the bar-drafted proposals for the 2014 legislative session, which were reviewed and approved by the Board of Governors at the September meeting. He explained that Ms. Catherine Barrie is available to take any questions.



5.            Committee Reports:


A.           Client Security Fund Committee


Mr. Chris Janku reported that the Client Security Fund Committee met in August and recommended payment of 13 claims (greater than $2,500) totaling $114,924.98 for submission to the Board of Governors at this meeting, pursuant to Article 2.10 of the Committee’s Regulations and Rules of Procedure. At its November meeting, the committee voted to recommend payment of an additional 15 claims for a total of $71,118.35, along with the denial of 11 claims and the deferral of eight claims pending receipt of additional information. The Committee now requests payment of 28 claims for $186,043.33, denial of 11 claims and deferral of eight claims, with authorization to submit recommendations on the deferred claims to the Board of Governors at its February 2014 meeting.  He reported that the cumulative total recommended for payment in 2013 is $233,691.34 and the balance of the Client Security Fund as of September 30 was $339,131.82. It was moved and seconded to approve the committee’s recommendation. The motion was approved. 





B.           Judicial Performance Evaluation Committee


Mr. Dale Doerhoff reported on proposed changes to Supreme Court Rule 10.55 governing the Judicial Performance Evaluation (JPE) program. Mr. Doerhoff called attention to a written summary, which includes a review of the history of the JPE program and the positive impact that the evaluation program has had on increasing the number of voters who complete the judicial retention portion of the election ballot. The summary also outlines the changes and improvements to the evaluation process, including the formation of JPE committees in all merit selection areas of the state and for the appellate courts. He also called attention to proposed changes regarding the date for the release of evaluation results during an election year and to a committee recommendation for the Supreme Court of Missouri to establish a judicial mentoring program.


Mr. Doerhoff reported that the JPE Committee proposes moving the final date to release the JPE results from September 1 to October 1. He reported that a later date would better coincide with the time period that voters focus on issues related to the November election, making publicity about the JPE results more timely, relevant and effective. He also noted that the expanded use of electronic communication makes it easier to disseminate results more quickly.


Mr. Doerhoff also reported that the JPE Committee proposes that the Board of Governors recommend that the Supreme Court of Missouri establish a mentoring program for judges who need help, utilizing senior judges as mentor resources under such a program. He noted that six other states with JPE programs have instituted a mentoring program.


Discussion focused on what action would trigger the need for a judge’s participation in the mentoring program, whether participation would be voluntary, the role of the JPE program as a means to retain good judges versus that of removing poorly performing judges and the potential issues related to due process related to participation in a mentoring arrangement. It was moved and seconded to approve the proposed recommendations to revise Supreme Court Rule 10.55 and communicate the Board’s recommendation to the Supreme Court of Missouri.


     C.            Intervention Committee


(a)          Model Program for Law Firms Addressing Impairment Issues


Mr. Hugh O’Donnell, chair of The Missouri Bar Intervention Committee, informed the board about a model policy to assist law firms addressing impairment issues. Mr. O’Donnell reviewed statistics related to impairment issues involving members of the legal profession and the impact these issues have on law firms, the lawyer’s career and their families. He expressed concerns about the level of awareness within Missouri’s legal profession regarding the resources available through MOLAP, especially the confidential nature of the assistance available. He noted that KCMBA is planning an effort to better publicize MOLAP and the model policy to its membership. He called attention to a Missouri Bar produced video, which features Judge Richard Teitelman, Chief Disciplinary Counsel Alan Pratzel and Mr. O’Donnell, and is designed to educate the legal community regarding MOLAP services. He reported that the Missouri Bar Legal Education Committee is being asked to consider incorporating the video at CLE programming throughout the state. Mr. O’Donnell asked for the support of Board of Governors to publicize and make the model policy and video more widely known within Missouri’s legal profession.


(b)          Presentation of Mock Intervention


Missouri Bar MOLAP Director Anne Chambers and committee members Hugh O’Donnell and Dave Purcell demonstrated a mock intervention. Mr. Brady commended the group for this presentation and the services provided by MOLAP. He asked members of the Board to review the model policy distributed by Mr. O’Donnell and consider the request to publicize the policy to lawyers and judges, as a way to improve the awareness of resources available to help impaired lawyers. Mr. Brady reported that he will bring the model policy before this body in February.


D.           Additional Committee Reports


(1)          Solo and Small Firm Committee

Mr. Ray Williams, Board liaison to the Solo and Small Firm Committee, reported that the committee discussed issues related to the enrollment fee increase, particularly the access to justice portion approved by the Supreme Court of Missouri, on the SFIG listserve and at the Solo and Small Firm Committee meeting held today. He reported that the committee approved the following resolution at today’s meeting and asked that it be communicated to the Board of Governors. He further explained that this resolution is not intended as opposition to access to justice, but is related to the process used to raise funds through the enrollment fee.


“Be it resolved the Solo and Small Firm Committee of The Missouri Bar encourages the Board of Governors to continue to explore alternatives to the legal services fee through either the Blue Ribbon Committee that had been talked about or through some other means that the board deems appropriate.”


Mr. Brady described his post to the SFIG listserve in response to the comments made by some of the subscribers. Mr. Brady commented on the undeniable need, the funding challenges that currently exist and the ongoing challenges to identify options to better address the problems of access to justice for the indigent. He noted that because the Court has approved the access to justice fee, the Blue Ribbon Committee approach is not as appropriate a vehicle for analysis and he recommended that the access to justice issue, including the analysis of the effectiveness of current providers, be assigned to the existing Missouri Bar Delivery of Legal Services Committee.


Mr. Eric Wulff reported that the St. Charles Bar Association met shortly after the access to justice fee had been announced, took a vote and asked that he express the following to the Board of Governors: “The St. Charles Bar Association wants to express its strong support not only for legal services but for all organizations that provide legal assistance and representation for the indigent and for those less fortunate in relation to economic means and circumstances, but the St. Charles Bar is also disappointed that the Court chose to impose this additional fee on members of The Missouri Bar without seeking input from members of The Missouri Bar or its elected representatives.”


Mr. Brady commented that it is important that the members throughout the state understand the origins of the two fees that came about this year – the operational fee which is typically increased every four or five years to fund the services of The Missouri Bar and the fee that the Supreme Court of Missouri included for the funding of access to justice.


Judge Richard B. Teitelman praised the Board of Governors and members of The Missouri Bar for their great work. He expressed appreciation for the views expressed and the future willingness to work together. Mr. Greg Lombardi also expressed support for assigning the access to justice analysis to the DLS Committee. Ms. Nancy Mogab expressed understanding for the positions of the solo and small firm lawyers related to paying the increased access to justice fee. She also expressed appreciation to the Supreme Court of Missouri for a reminder about what is important. She further encouraged a broader view of the issues that impact poverty and create the need for increased funding and to consider where responsibility lies in that regard, which may include the legislature.



6.            Determination of the Allocation of the 2013 Pro Hac Vice Fee Receipts:


Mr. Brady called attention to a memorandum outlining the process for allocating Pro Hac Vice Fees approved by the Board of Governors in 2010, noting the approval of a permanent allocation to support legal services based on the total of fees collected in 2010, and the additional allocation to legal services of 80% of the fees collected in any given year above that amount. He noted that the remaining 20% of any additional fees is allocated by the Board pursuant to Rule 6.07. Mr. Brady recommended that the 20% allocation of fees collected in 2013 be used to support the work of the Relevance Committee in enhancing public and member outreach. It was moved and seconded to approve the recommendation. The motion was approved.



7.            Finances:


The Board of Governors went into executive session at this time. It was moved and seconded to approve the draft budget for the 2014 Bar year. The motion was approved.



     There being no further business, the meeting was adjourned.


                                                                                          Respectfully submitted,





                                                                                          Sebrina A. Barrett, Secretary