Board Minutes



March 2, 2016

Erik A. Bergmanis, President
Dana Tippin Cutler, President-Elect
Nancy R. Mogab, Vice-President
Reuben Shelton, Immediate Past President
Sebrina A. Barrett, Secretary

Thomas V. Bender
Amy Bender-Levy
Suzanne B. Bradley
W. Perry Brandt
Robert J. Buckley
Rod T. Chapel, Jr.
Morry S. Cole
Mark W. Comley
J. Brent Dulle
Joel R. Elmer
Genevieve M. Frank
John W. Grimm
John R. Gunn
J. B. Lasater
Jennifer E. Matthew
James McConnell
Lauren Tucker McCubbin
Mira Mdivani
Douglass F. Noland
Jason Paulsmeyer
John E. Price
Jason Rew
Tricia M. Scaglia
Deanna K. Scott
Hon. W. Douglas Thomson
Raymond E. Williams

Members present by video/telephone:
Hon. Nicole Colbert-Botchway
Hon. John F. Kintz
Karen McCarthy

Members absent:
Bevy A. Beimdiek
Hon. Charles Curless
Deborah K. Dodge
James H. Guest
Edward J. Hershewe
Robert S. Kenney
Amanda Ketchum
Gregg F. Lombardi
Max E. Mitchell
Joseph P. Rice, III
Joan M. Swartz
Eric J. Wulff

Also Present:
Betsy Aubuchon
Millie Aulbur
Lucas Boling
Gordon Brown
Anne Chambers
Danelle Cord
Farrah Fite
Kent Hopper
Chris Janku
Eric Jennings
Cindy Neagle
Delores Shepherd
Johnathan Sternberg
Robert Stoeckl
Gary Toohey
Dr. Johnnie Washington
Eric Wilson

1. Minutes: 

Mr. Erik Bergmanis reported that the draft minutes of November 20 meeting of the Board of Governors need to be amended to reflect that Mr. Bill Thompson was not present. It was moved and seconded that the minutes of the November 20 meeting of the Board of Governors be approved as amended and the minutes of the Board of Governors meetings on December 8, 2015 and January 15 and January 27, 2016 and the minutes of the Executive Committee meetings of November 20 and December 8, 2015 and January 14, January 29 and February 11, 2016 be approved. The motion was approved.  

2. Finances:   

Judge Doug Thomson provided a report on the financial status of The Missouri Bar. He reported that the overall income for 2015 was approximately $11.9 million dollars with approximately $7.9 million coming from enrollment fees. He reported that disbursements were approximately $9.7 million, providing an end of year surplus of approximately $2 million dollars. He further reported that CLE programs received revenue of approximately $2.5 million or 92% of budget with expenses of about 87% of budget. He reported that CLE publications had revenue of about $405,000 or 78% of budget with expenses of 86%, resulting in a loss of approximately $62,000 at year end. He indicated that the expenses for CLE publications are anticipated to be lower next year when expenses no longer include fixed costs associated with the print shop.

Judge Thomson reported that total assets are about $9.3 million and he reviewed a multi-year laddered investment strategy designed to increase the rate of return.                  

3. Appointments: 

A. March Appointments

Ms. Tricia Scaglia reported on March appointments as recommended by the Board Appointments Committee.

(1)          JPE Appellate Committee

Ms. Scaglia reported that the committee has received no recommendations for a non-lawyer vacancy to the Eastern District of the Judicial Performance Appellate Evaluation Committee. She reported that the Appointments Committee recommends extending the nomination period until March 18, 2016. She further reported that the Appointments Committee would meet on March 22 to review nominations for action by the Board of Governors. She noted that a meeting of the Board of Governors will be needed before its next regularly scheduled meeting on May 5 to take action on this appointment because the work schedule of the JPE committee requires that the appointment be made prior to May. Ms. Scaglia encouraged board members to nominate a non-lawyer for this position. It was moved and seconded to extend the nomination period for the non-lawyer position on the JPE Appellate Committee in the Eastern District until March 18. The motion was approved.   

(2)          Lawyer to Lawyer Dispute Resolution Committee

Ms. Scaglia reported that the terms of Theresa L. F. Levings, Keith A. Cutler and Ronald Willenbrock are expiring and they are not eligible for reappointment. It was moved and seconded to approve the appointments of David C. Berwin and Laura O’Sullivan to fill two of the vacancies. The motion was approved. Ms. Scaglia reported that the Appointments Committee recommends extending the nomination period to fill the third vacancy to March 18, 2016 and reported that members on the volunteer roster for this committee will be solicited regarding their interest in serving. It was moved and seconded that the nomination period be extended until March 18, 2016. The motion was approved.                         

(3)          Press-Bar Commission     

Ms. Scaglia reported that Mark Sableman has been voted to a “member at large” position, creating a vacancy for a Missouri Bar appointee on this committee. It was moved and seconded to extend the nomination period to fill this vacancy until March 18, 2016. The motion was approved.

Ms. Scaglia reported that a vacancy exists on the committee due to the recent death of James Condry. It was moved and seconded to approve Ms. Kim Moore to fill this vacancy. The motion was approved. 

B. May Appointments

(1)          Fee Dispute Resolution Committee

Ms. Scaglia reported that the terms of Messrs. Gary Stamper and Kenneth Labit are expiring and that Mr. Labit is eligible for reappointment, while Mr. Stamper is not. She reported that these appointments will be taken up at the May board meeting.

(2)          Intervention Committee

Ms. Scaglia reported that the terms of Messrs. Charles “Ross” Rhoades and Gary Burger are expiring. Both are eligible for reappointment, are willing to serve another term and their reappointments will be taken up at the May board meeting.

4. Legislation:   

A. Bar-Drafted Legislation

Mr. Eric Jennings reported that the regular weekly reports sent to the Board of Governors cover most actions regarding bar-drafted and other legislation. He reported that the Senate version of the Commercial Receivership Act is being heard in the House Civil and Criminal Proceedings Committee today and that the bill is progressing quite well. He also reported that the House version of the preparation of property descriptions bill has been voted out of the first committee and is waiting for second committee consideration. He reported that committee hearings had been held in the Senate on the Uniform Power of Appointments Act and the Bar’s larger probate and trust bill and both have been approved by the Senate Judiciary Committee. He noted that they are waiting for these bills to be placed on the calendar. Mr. Jennings also reported that the Senate version of the expungement sealing of criminal records bill has been rolled in with two other Senate bills and all three of those bills have been voted out of committee and placed on the Senate calendar for debate.

B. Bar Committee-Drafted Legislation for Approval

Mr. Jonathan Sternberg, vice-chair of the Civil Practice and Procedure Committee, provided a report on committee-drafted proposed legislation regarding General Interlocutory Appeal of Non-final Orders (LEG. PROPOSAL 2016-13). He explained that the bill would change Missouri’s interlocutory appeals process from a common law writ-only system to a general form discretionary interlocutory appeal system for civil and criminal cases. Mr. Sternberg outlined the process used by the Civil Practice and Procedure Committee to study and develop the proposed legislation, indicating that the process included a two-year study by the committee and that the proposed legislation has been approved by the committee. He noted that there have been some opposing concerns to this legislation expressed by appellate judges and that the committee has recently responded in writing to the opposing positions. Mr. Bergmanis thanked Mr. Sternberg for his report. Mr. Bergmanis indicated that due to the timing of the receipt of the written response provided by the committee, an adequate review of the response was not possible prior to this meeting. Mr. Bergmanis expressed concerns regarding timing challenges involved in trying to introduce the bill in the current session, citing fast approaching legislative deadlines. Mr. Bergmanis suggested an alternative approach would be to consider the legislation for discussion and a vote during the May or July meeting of the Board, or at the latest, at the September meeting during the Annual Meeting. He explained that this would allow time to study the information provided by the committee regarding judicial concerns and give the measure proper consideration. He commended the work of the committee and acknowledged the importance the committee places on the proposed measure. An initial motion to defer action on this legislation until September was withdrawn and a motion was made and seconded to table the action. The motion was approved.

5. Missouri Lawyers Assistance Program Presentation: 

Ms. Anne Chambers, director of the Missouri Bar Lawyers’ Assistance program, provided a brief summary of the results of a study funded by the Hazelden Betty Ford Foundation and the American Bar Association Commission on Lawyer Assistance Programs. The study was based on the recently published Journal of Addiction Medicine article titled “The Prevalence of Substance Use and Mental Health Concerns Among American Attorneys” and Missouri was one of the states that participated. She highlighted key findings of the study.

6. Officers’ Reports: 

A. President’s Report

Mr. Bergmanis reported on a list of activities and duties that he has taken part in since the last meeting of the Board. He reported that he attended the December meeting of the Kansas City Metropolitan Bar Association, and meetings of the St. Louis County Bar Association and the Eastern Jackson County Bar. He reported that he participated in the kick-off meeting of the Annual Meeting Planning Committee in late January. He noted that the Annual Meeting will be held at the Lodge of the Four Seasons this year. He further noted that activities surrounding the Annual Meeting will be designed to take advantage of the lake venue, including incorporating luxury boat activities during the Best of Missouri reception as well as the possibility of showcasing Tesla auto models during the President’s and Chief Justice’s Opening Night reception. He reported that the Lodge of the Four Seasons is undergoing a major renovation, making the venue very attractive and asked the Board to encourage lawyers to attend.

He reported on the value of activities such as the Legislative Day, which preceded this board meeting, as well as reported on legislative dinners held in Kansas City and St. Louis, noting the value of these events in developing relationships with members of the Missouri Legislature.

He further reported that he attended the ABA Mid-Year Meeting in February, commenting on the value associated with learning about the issues and activities impacting the profession throughout the country, including recent actions involving Legal Zoom and bar associations.

Mr. Bergmanis reported that he was invited by the Federalist Society to attend a memorial Mass for the late Supreme Court Justice Antonin Scalia. He attended the Justice for All Ball benefiting Legal Services of Eastern Missouri. He noted that he was a guest of Board Member Rod Chapel’s radio program and congratulated Mr. Chapel on being elected State President of the NAACP. Mr. Bergmanis also reported that he and Executive Director Sebrina Barrett meet by telephone every Monday morning.      

B. President-Elect’s Report          

Ms. Dana Tippin Cutler reported that the Strategic Planning Committee met yesterday, noting that the committee focused on the mandatory programs required of The Missouri Bar such as MOLAP, MCLE, JPE, Client Security Fund, Complaint Resolution and Fee Dispute Resolution.  She reported that the committee is looking at what may be needed to make these programs even better. She noted that the committee is awaiting some follow up materials before moving forward. She also reported that the next area of focus will be the non-mandatory programs. For these programs, she indicated the committee will consider: (1) whether The Missouri Bar’s program is the best or whether there are other local or specialty bars with better programs; (2) whether it is better to discontinue providing programs not deemed the best and instead support the other bar associations that do a better job delivering the program; and/or (3) if continuing the program, identifying what is needed to make The Missouri Bar program the best alternative (e.g. staff, resources, additional funding, etc.).

Ms. Tippin Cutler noted that funding had been approved for an assessment of Missouri Bar technology resources and that RFPs have been solicited for this assessment. She emphasized the ubiquitous link between Bar technological capabilities and its strategic and operational objectives.

She reported that the committee will be reviewing the strategic plan strategies under goals 1 through 5 and anticipates providing a specific report on goals at the May or July meeting.  

Ms. Tippin Cutler reported that she has attended many of the same activities as Mr. Bergmanis outlined in his report, so will not address them here. She noted that she and Vice President Mogab will be attending the Bar Leadership Institute in March.

She also reported that planning is underway to develop the Southern Conference of Bar Presidents, noting that Missouri is the host for this conference in October of 2016 at Big Cedar Lodge and Resort. She reported that the development of the conference is proceeding well.

She reported that she recently traveled to Biloxi, Mississippi to conduct a site visit for a new out of state CLE offering to members – “CLE by the Sea.” She indicated that this CLE program is being developed and will take place in January 2017. She reported that the program will not include a meeting of the Board of Governors, but instead offer an opportunity for all members to have an out-of-state CLE option in an area which provides a lot of fun activities during the winter period.

Ms. Tippin Cutler recognized the work of Missouri Bar Legislative Counsel, Eric Jennings and Eric Wilson, for a very successful Legislative Day.

C. Vice-President’s Report

Ms. Nancy Mogab thanked members of the Board for taking the time to participate in the Legislative Day. She reported that she too had attended a number of the activities already outlined in previous officer reports. She reported that she also attended media training, which was very worthwhile and helpful. She also reported attending the meeting of the Legislative Committee at the end of December and commended the group of individuals who spend a full day to review, analyze and share their expertise and recommendations regarding scope and Missouri Bar positions related to legislation introduced in the session. She reported that she attended the NCBP program prior to the ABA Mid-Year Meeting and also emphasized the value these meetings provide in gaining insight into a range of issues impacting the profession.

She attended Rod Chapel’s presentation at the St. Louis County Bar Association and reported that the Mini Law School continues to go well, noting that in addition to the original St. Louis venue, the program has been presented in Columbia, Jefferson City and Springfield. Ms. Mogab thanked many Board members for their help in making the program a success.  

D. Treasurer’s Report

Mr. Bill Thompson reported that the new enrollment process is working well and the Court is looking forward to the planned technology audit. He reported that the Supreme Court of Missouri’s municipal court working group has recently submitted its final report. He further noted that Immediate Past President Reuben Shelton served on that working group. He also suggested that the Board consider creating local municipal bar groups that could bring concerns regarding the courts to the attention of the appropriate presiding judge, as a way to help the courts supervise the municipal divisions.

Mr. Thompson also reported that more than 300 lawyers were suspended this week for deficiencies regarding the annual CLE requirements. He explained that lawyers who are suspended cannot participate in the electronic filing system, noting that this restriction has contributed to faster resolution of the noncompliance suspensions. He further explained that the Court is not required to publish the names of those suspended for CLE requirement deficiencies. However, the list of lawyers who were suspended is included with the Supreme Court of Missouri Order, which is public. He explained that the Court is required to publish the names of lawyers who have been suspended for nonpayment of enrollment fees, an action that will take place in May. It was also reported that when a lawyer is suspended for whatever reason, their status is changed in The Missouri Bar’s database and that lawyer will no longer appear as a lawyer in good standing in a public search on the Bar’s website.

Mr. Thompson reported that the Supreme Court of Missouri has issued two new rules since the last meeting of the Board of Governors, one on garnishments and another on eye witness identification. Both rules will be effective on July 1. He noted that the Court always welcomes comments from members of the bar and encourages members to make comments.

He reported that the Court is preparing to offer the ability to vote electronically in the upcoming Board of Governors election, indicating that the list of candidates in districts where elections are scheduled in 2016 will be released in May.

Mr. Thompson concluded his report commenting that the Board of Governors may want to consider the viability and value of smaller annual increases to bar enrollment fees, rather recommending a larger increase after a multi-year cycle.

E. Executive Director’s Report

Ms. Sebrina Barrett also thanked the members of the Board for participating in the Legislative Day activities. She acknowledged the return of Bob Stoeckl and she called attention to the artwork of students who participated in the 2016 YLS Art Contest, noting that the artwork of this year’s winners adorns the walls outside of the meeting room. She reported that video conferencing technology is being tested during this meeting and acknowledged Judge Kintz’s participation in the use of this technology. She reported that she also attended many of the activities, meetings and events already touched on by members of leadership, noting that she has been on the road approximately 20 days during the first two months of the year. She reported that efforts will be made to let members of the Board know anytime that leadership will be attending a local bar event in a board member’s district. She noted that it is very valuable to have board members at these local events and enhances the leadership’s ability to build relationships with lawyers across the state. Ms. Barrett introduced a new Missouri Bar staff person, Hannah Kiddoo, who holds the position of Media Writer. She also reported that Debbie Challenger, the Bar’s new Accounting Manager, will be starting later in the month. Ms. Barrett reported that Ms. Challenger will succeed longtime Missouri Bar employee Gerrie Madsen, who will be retiring after 31 years of service to The Missouri Bar. Ms. Barrett reported that The Missouri Bar is again partnering with Missouri State University and Legal Services of Southern Missouri on an annual Diversity Summit, which is scheduled for March 16-18. She reported that CLE programming will be presented on March 17 as part of the Summit and she thanked all who have worked on this collaborative effort, now in its second year.

(1)          Media Articles       

Ms. Barrett called attention to the report included in the board packet regarding media coverage, including the news articles and website statistics.

(2)          Public Service Announcements

Ms. Barrett presented the 2016 Missouri Bar Public Service Announcements for a viewing of the Board. Ms. Farrah Fite called attention to materials in the board packet that outlined the reach of the PSAs on both television and on radio and the impact the PSAs have on driving the public to The Missouri Bar website. She also explained that a low contract fee available to non-profits through the Missouri Broadcasters Association expands the air time and leverages the reach of the PSAs on television and radio.

(3)          Year-End Reports of the Complaint Resolution, Lawyer-to-Lawyer Dispute Resolution and Fee Dispute Resolution Committees

Ms. Barrett called attention to year-end reports of the Complaint Resolution, Lawyer-to-Lawyer Dispute Resolution and Fee Dispute Resolution Committees. She further reported that the Joint Supreme Court of Missouri and Missouri Bar Task Force on the Future of the Profession is very close to completing the final draft of its report. She noted that the draft will be provided for Board comment at the May board meeting and will be submitted to the Board of Governors in July.

7.            Executive Session  

Mr. Bergmanis called the Board of Governors into Executive Session.

There being no further business, the meeting was adjourned.

Respectfully submitted,

Sebrina A. Barrett, Secretary