2014-2015 BOARD OF GOVERNORS MEETING
March 5, 2015
The Missouri Bar Center, Jefferson City
Reuben Shelton, President
Erik A. Bergmanis, President-Elect
Dana Tippin Cutler, Vice-President
Bill Thompson, Treasurer
Sebrina A. Barrett, Secretary
Bevy A. Beimdiek
Thomas V. Bender
Robert J. Buckley
Rod T. Chapel, Jr.
Morry S. Cole
Mark W. Comley
Hon. Charles Curless
J. Brent Dulle
Joel R. Elmer
Genevieve M. Frank
John W. Grimm
James H. Guest
John R. Gunn
Robert S. Kenney
Gregg F. Lombardi
Lauren Tucker McCubbin
Max E. Mitchell
Nancy R. Mogab
Douglass F. Noland
John E. Price
Joseph P. Rice, III
Tricia M. Scaglia
Walter R. Simpson
W. Douglas Thomson
Raymond E. Williams
Eric J. Wulff
Members Present by Telephone:
Edward J. Hershewe
Deanna K. Scott
P. John Brady
Suzanne B. Bradley
Hon. John F. Kintz
J. B. Lasater
Joan M. Swartz
The Board of Governors accepted and approved the minutes of the Board of Governors meetings of November 21, 2014 and January 15, 2015 and the minutes of the Executive Committee meetings of November 21 and December 4, 2014 and January 26 and February 13, 2015 as drafted.
Judge Doug Thomson reported that The Missouri Bar reserves have a balance of approximately $8 million dollars. He reported that about $3 million is invested and it is expected that amount invested will go up to approximately $5 million as investment opportunities become available. He reported that receipts are up, mainly due to the enrollment fee increase. He also noted that both CLE programs and CLE publications posted a better net revenue in 2014. He reported that disbursements were up approximately $392,000 at end of the year, but that overall disbursements were approximately $1.2 million under budget. He reported that Pro Hac Vice fees revenue was significantly higher than expected, noting that about $682,000 was expected and $975,000 was actually received. No action was needed for the financial report.
Update on Bar-drafted Legislation
Ms. Catherine Barrie provided a report on the progress of bar-drafted legislation. She reported that the bill drafted by the Commercial Law Committee regarding an exemption for life insurance proceeds for funeral expenses (House Bill 276 and Senate Bill 164) is proceeding well. It has been voted out of the committee in both the House and Senate and is expected to come to the floor in the House soon.
She reported that the Missouri Commercial Receivership Act legislation (House Bill 765 and Senate Bill 216), also drafted by the Commercial Law Committee, is moving a little more slowly in the House. It has been assigned to a committee but has not yet been heard. She reported that this bill has been heard and voted out of committee in the Senate and that the measure was well received and had no opposition.
Ms. Barrie reported that the Designated Health Care Decision-Maker Act continues to be worked on, noting that this is a complicated issue. She reported that Rep. McGaugh indicated that he will be filing the bill soon. She noted that any amendments to this measure that would indirectly impact the Bar’s Durable Power of Attorney for Health Care would be opposed.
She further reported that the expungement/sealing of criminal records legislation has been filed in the Senate (Senate Bill 451). She noted that it will be filed soon in the House. A question was raised as to whether the bill that was filed contained any of the suggested changes discussed during the special meeting of the Board of Governors held by conference call. Ms. Barrie and Mr. Eric Wilson reported that those changes have been discussed with the sponsor of the bill and are expected to be introduced in a substitute and dealt with in committee. Ms. Barrie further reported that it likely that this bill will not pass in this session.
B. Bills for Consideration
Ms. Barrie reported that the Board of Governors is being asked to consider taking a position on two bills today - Senate Bill 36 and House Bill 270. She reported that both bills relate to employment discrimination matters. She noted that both bills have language that limits or removes judicial discretion, creating constitutionality concerns pursuant to the separation of powers. She reported that the first bill has language abrogating jury instructions and limits a judge’s reliance on some case rulings. The second bill removes judicial discretion in areas of summary judgement. She noted that the Board of Governors opposed a bill with similar limitations in 2011. It was moved and seconded that both bills are in scope. The motion was approved by two-thirds of the members of the Board of Governors present and voting. It was moved and seconded to oppose both bills for the reasons that it will make it more difficult for plaintiffs in these types of cases and because bills abrogate and eliminate judicial discretion and encroach on the authority of the judicial branch. A question was raised as to whether this motion opposes the portions of the bill that encroach on judicial authority as was done in 2011 or opposition to the bill is more broadly related to the changes in substantive provisions related to the limitation of damages and standards of the legislation. A motion was made and seconded to amend the original motion and oppose the bills for the same reasons that the Board of Governors opposed Senate Bill 188 in 2011, which related to the elimination of judicial discretion and encroachment on the autonomy of the judicial branch. The motion to amend was approved. The motion as amended was approved by two-thirds of the members of the Board of Governors present and voting.
A. March Appointments
(1) Judicial Performance Evaluation Committees
(a) 6th Judicial Circuit (Platte County)
Ms. Sebrina Barrett reported that there are two non-lawyer vacancies and two lawyer vacancies in this circuit. She reported that Mr. Jeff Cox and Mr. Jack Swindler have been nominated for the two non-lawyer vacancies. It was moved and seconded to approve the appointment of both nominees. The motion was approved.
Ms. Barrett reported that three lawyers have been nominated for the two lawyer vacancies – James Boggs, Tammy Glick and Nathan Dulle. Members of the Board of Governors utilized a paper ballot to vote on the nominees. Mr. Boggs and Ms. Glick were selected to fill the two vacancies.
(b) 7th Circuit (Clay County)
Ms. Barret reported that there are two lawyer and one non-lawyer vacancy in this circuit. She reported that Pamela J. Palmer and Ward K. Brown have been nominated to fill the two lawyer vacancies and George W. Steincross was nominated to fill the non-lawyer vacancy. It was moved and seconded to approve the appointment of all three nominees. The motion was approved.
(c) 16th Circuit (Jackson County)
Ms. Barrett reported that there were no nominees for the one lawyer and one non-lawyer vacancy in Jackson County.
(d) 21st Circuit (St. Louis County)
Ms. Barrett reported that there were no nominees for the one lawyer vacancy in St. Louis County.
(e) 22nd Circuit (St. Louis City)
Ms. Barrett reported that there were no nominees for the two lawyer vacancies and one non-lawyer vacancy in St. Louis City.
There were no nominees submitted for the one lawyer vacancy from the Western District, the one lawyer vacancy from the Southern District, and one non-lawyer vacancy from the Eastern District. Ms. Barrett reported that Mr. Jacob Sanders was nominated to fill the one non-lawyer vacancy in the Southern District. It was moved and seconded to approve the nomination of Mr. Sanders. The motion was approved.
(2) ABA House of Delegates
Ms. Barrett reported that Carla Fields Johnson’s second term as a diversity delegate is expiring and she is not eligible for reappointment. It was moved and seconded to nominate Mira Mdivani for the diversity seat on the ABA House of Delegates. It was noted that traditionally the nominees for this seat have rotated between Kansas City and St. Louis and because Ms. Fields is from Kansas City, protocol would indicate that the next nominee should come from St. Louis. It was also noted that traditionally the nominees for this seat are not members of the Board of Governors and that the seat is intended to offer a leadership opportunity to someone who is not otherwise involved with The Missouri Bar. Mr. Shelton proposed that we reach out to individuals in St. Louis and also outstate to see if there is interest and move nominations forward before the next board meeting. It was moved to table to original nomination. The motion was approved.
(3) Fee Dispute Resolution Committee
Ms. Barrett reported that Ms. Adele Holt (non-lawyer) and Ms. Jamie Laramore’s (lawyer) terms are expiring. Ms. Holt does not wish to be appointed, and Mr. Laramore is not eligible for reappointment. She reported that Mr. James Broshot has been nominated for the lawyer vacancy and Mr. Steve Hagan for the non-lawyer position. It was moved and seconded to approve both nominees. The motion was approved.
(4) Intervention Committee
Ms. Barrett reported that Mr. John Greider’s term is expiring and he does not want to serve another term. She reported that Mr. David Crawford has been nominated and is interested in serving. It was moved and seconded to approve Mr. Crawford. The motion was approved.
5. Committee Reports:
A. Young Lawyers Section
Mr. J. Brent Dulle reported that the YLS recently held its winter meeting in Columbia. He reported that the YLS Law Day poster contest is currently under way, noting that entries for that contest adorn the venue for this meeting. He reported that plans are under way to participate in the upcoming enrollment ceremonies and that the YLS has recently launched a new prisoner education program and started a pro bono committee.
B. Joint Commission on Women in the Profession
Ms. Megan Phillips reported on a proposal from the Joint Commission on Women in the Profession to add an optional gender question to the annual enrollment form. She reported that the information collected will be important for the Commission to fulfill its mission and track trends related to this growing population of the bar. She noted that the proposal has been endorsed by all of the women lawyers associations in the state and similar information is collected by many mandatory bars throughout the country. A question was posed regarding placement of information on the form indicating that answering the gender question is optional. It was noted that this information was intended to be less prominent in the draft proposal, but the Supreme Court of Missouri could change the placement on the final form. It was moved and seconded to approve the proposed addition of the gender question on the enrollment form. The motion was approved.
6. Officers’ Reports:
A. President’s Report
Mr. Reuben Shelton reported on several meetings that were recently held with representatives from large firms and corporate counsel as part of the initiative to make The Missouri Bar more relevant to this segment of the membership. He reported that meetings were held in St. Louis and Kansas City. He reported that these two groups indicated that the Bar’s focus was too global and needed to be more specifically tailored to the areas and needs of the large firm and corporate counsel in order to have an impact on relevance, noting that areas such as mergers and acquisitions, anti-trust and IP need more focus in committee structures. He noted that large firms currently conduct their own CLE programming, bringing in international speakers and that representatives suggested that the Bar should focus on how it can play a role in addressing their needs. Comments were made regarding the role of the Bar in providing opportunities for members of large firms and for corporate counsel to fulfill their obligation as lawyers to give back to the profession and to the community and whether the Bar can help this segment recognize this area as an important avenue toward relevance within The Missouri Bar. Additional comments indicated that efforts might focus on enhancing networking and business opportunities for the younger lawyers of large firm and corporate counsel at Bar gatherings such as the Annual Meeting. It was noted that the large firm and corporate counsel present were provided information about The Missouri Bar’s Leadership Academy and the Bar’s role in encouraging professionalism and civility was discussed.
Mr. Shelton reported that these roundtable discussions will continue and that this is a first step in ensuring the Bar’s relevance to this segment of the membership and that Mr. Bergmanis plans to continue this dialogue.
Mr. Shelton reported on a previous proposal to allocate a portion of the 2014 pro hac vice funds to other non-profit organizations that provide needed legal services to the indigent and low-income individuals within the state. Mr. Shelton proposed an alternative approach where non-profit organizations providing these services could apply for a lump sum contribution from The Missouri Bar. He reported that this idea is conceptual at this point and would be developed more fully, if the Board agrees with this concept. Questions were raised as to whether it would be beneficial to consider a wider range of uses for these funds supporting services or areas beyond only legal services to the indigent and low-income citizens. It was suggested that the criteria might be to focus on the best and highest use of the funds as a means to identify a wider range of uses. Mr. Shelton reported that if the concept is acceptable, a more specific framework would be developed for the Board to review and vote on. Members of the Board of Governors were asked to submit any alternative use options to Ms. Barrett.
Mr. Shelton commented on a report of the Task Force on Lawyers Helping Lawyers. He noted that the comprehensive report was provided at the fall meeting of the Board of Governors and emailed to members of the Board of Governors earlier this week. He indicated that the report proposes a number of actions to address the serious issues surrounding mental health and suicide within Missouri’s legal profession. Mr. Shelton reported that many of the recommendations in the report are already being implemented and are reflected in a separate report prepared by Ms. Barrett. He indicated that he would like to have the report reviewed by the Board and reviewed at a future time.
B. President-Elect’s Report
Mr. Erik Bergmanis reported on his activities since the fall meeting. He reported on his participation in the large firm and corporate counsel roundtables in St. Louis and Kansas City, noting that he found the dialogue and discussion valuable and that he plans to continue the outreach to this segment of the Bar during his term. He reported that the large firm representatives indicated that the Bar could play a very significant role in providing CLE related to ethics and professionalism that would be relevant to large firms and corporate counsel. However, Mr. Bergmanis noted that it would be more challenging to try to provide specific practice related CLE on areas important to this segment that would be of the same high level that these firms currently provide.
Mr. Bergmanis reported that he met with Dan Glazier, executive director of Legal Services of Eastern Missouri, and took a tour of the office. He indicated that this meeting gave him a better perspective on the work being done by the Legal Aid offices in the state and the challenges they face in providing legal services to low-income citizens.
He reported that he has been attending legislative dinners, most recently one in Springfield, and that he discussed issues related to adequate judicial resources for complex litigation cases in the state with Sen. Dixon.
He reported that he will be attending the Bar Leadership Institute next week and attended the ABA Mid-Year Meeting in Houston in February. He noted that many of the presentations at the ABA meeting focused on issues related to the future of the profession.
He encouraged members of the Board to share any thoughts or ideas with him at any time.
C. Vice-President’s Report
Ms. Dana Tippin Cutler reported that she has been attending the various meetings and activities as part of leadership and using her involvement as an opportunity to learn. She expressed appreciation for the work of the president and president-elect.
D. Treasurer’s Report
Mr. Bill Thompson, Clerk of the Supreme Court of Missouri, reported that the new enrollment billing process worked very well. He further reported that there will be a delay in OCDC occupying its new building. It is expected that they will be in the building by this summer. He also asked the Board of Governors to consider conducting its elections electronically. Mr. Thompson noted that the Court has been conducting both the appellate and circuit judicial commission elections electronically and that a process is in place that could be utilized by The Missouri Bar, noting the cost saving involved for electronic versus paper ballot elections.
E. Executive Director’s Report
Ms. Sebrina Barrett reported on her activities since the fall meeting. She reported that she also attended the ABA Mid-Year Meeting in Houston and the legislative dinners. She also reported that she was the luncheon speaker for the 4-H Legislative Academy meeting and joined Judge Schneider and Judge Daniels for a program at the Mid-Missouri Women Lawyers meeting.
(1) Dues Protests
Ms. Barrett reported that two members filed enrollment fee protests that required action by the Board of Governors. She reported that both members protested the $20 pass through fee contained in the fee statement that goes to Legal Services funding. She noted that one of the members also protested the portion of the enrollment fee that was used to defend the non-partisan court plan. She noted that in prior years protests related to these two areas have traditionally been denied. A motion was made to approve the protests. The motion failed for lack of a second.
(2) Media Articles
Ms. Barrett called attention to the packet of media articles contained in the meeting materials, noting that this information will be provided electronically in the future. She also reminded members of the Board of Governors about opportunities to write blog posts for The Missouri Bar’s website.
(3) Online Community Proposal from Higher Logic
Mr. Lucas Boling and Ms. Farrah Fite presented a proposal to change from The Missouri Bar’s current Lyris listserve platform to a platform hosted by Higher Logic. They reported that the Higher Logic platform offers the same listserve resource as Lyris along with a host of enhancements that include archiving, message threading, a resource library, discussion forums, blogs and event calendars, and noted that Higher Logic integrates with the Bar’s IMIS database. Members of the Board of Governors viewed a short video presentation by Higher Logic which highlighted the core functionality. It was noted a switch to Higher Logic is expected to save approximately $1,000 per month while providing better opportunity for member engagement. It was moved and seconded to approve moving from Lyris to Higher Logic and to adopt a user agreement for participation on the system. The motion was approved.
(4) Carol Chazen Friedman Scholarship
Ms. Barrett reported that the Board of Governors have traditionally contributed funds for a scholarship to the Solo and Small Firm Conference in memory of Carol Chazen Friedman. She noted that some funds were left over from last year’s scholarship and will be combined with any new contributions to fund this year’s scholarship. She noted that contributions should be sent by April 15.
(5) Year-End Reports of the Fee Dispute Resolution Program, Lawyer-to-Lawyer Dispute Resolution Program and Complaint Resolution Program
Ms. Barrett called attention to three year-end reports included with meeting materials and encouraged members of the Board to review the reports, which provide information on the Fee Dispute Resolution Program, Lawyer-to-Lawyer Dispute Resolution Program and Complaint Resolution Program.
(6) Guidebook on Criminal Code Revisions
Ms. Barrett called attention to a new Missouri Bar guidebook, which focuses on the recent revisions to Missouri’s Criminal Code. She noted that this guidebook is more general in its focus and other guidebooks focusing on more specific aspects of the revision are expected.
7. Report of Legal Aid Program Activities:
Mr. Lombardi provided a report on the Legal Aid programs in Missouri, focusing on the need for legal services, how Legal Aid is meeting the need, the innovative projects associated with their programs and possible answers for the ever increasing unmet need for legal assistance to the low-income and indigent citizens of the state. He expressed appreciation on behalf of the four Missouri Legal Aid offices for the support and partnership of The Missouri Bar, the Supreme Court of Missouri and the Board of Governors. Mr. Lombardi provided information on some typical cases to illustrate the need, including one that illustrates the work of Legal Aid to provide protective orders and divorces for individuals and families who are victims of domestic violence. He reported on the number of staff attorneys, paralegals and volunteer attorneys who work to meet the need and provided statistics related to the number and types of cases handled by Legal Aid in 2014, including work in areas of family law, Medicaid, and consumer issues. He reported on Legal Aid’s approach that addresses the specific needs of the community that each office serves, utilizing available resources to solve the most pressing problems. He gave examples of innovative programs from each of the four Legal Aid offices in Missouri, which ranged from community development projects to partnerships with health care facilities to blighted property improvements. He reported on Legal Aid’s success in leveraging funds from a diversity of sources and partnering with hundreds of organizations. He noted that a 2002 study indicated a tremendous unmet need for legal services available to low-income citizens and concluded that Legal Aid, with its experience and resources, continues to be the best answer to addressing the legal needs of the poor.
8. Executive Session to Discuss Personnel Matters:
Mr. Shelton called the Board of Governors into executive session.
9. Other Business:
Messrs. Ray Williams and Eric Wulff and Ms. Tricia Scaglia reported on concerns related to two bills in the Missouri House regarding alimony and spousal maintenance. They reported that provisions in House Bill 247 and House Bill 503 provide a bright line time limitation for alimony and spousal maintenance which would have the effect of abolishing current statutory law, common law and case law and removing judicial discretion in this area. It was noted that the Executive Committee had taken no position on this bill previously. It was contended that this is a matter related to the administration of justice and that the Board of Governors should take a position opposing the legislation. Questions were raised as to the basis for opposing the bills, particularly if such action to establish such limits and restrictions by statute is within the prerogative of the Missouri Legislature. Comments were expressed as to the unique nature of each case and the consensus among the family law practitioners that such a limitation is adverse to the administration of justice. It was moved and seconded that House Bill 247 and House Bill 503 are in scope. The motion was approved by two-thirds of the members of the Board of Governors present and voting. It was moved and seconded to oppose the legislation. The motion was approved by two-thirds of the members of the Board of Governors present and voting.
10. Governance/Strategic Planning:
Ms. Dana Tippin Cutler led the Board of Governors in a review and discussion of governance related matters related to the mission statement, the vision statement, the role and process of strategic planning and measuring tools related to progress on strategic goals, new board committees, and new pathways to serve on the Board of Governors. The Board of Governors broke into small groups to review the current mission statement, to discuss the need for revisions, and to develop and propose revisions to the statement. In addition, members of the Citizens Advisory Task Force provided thoughts and ideas related to the revision of the mission statement. The consensus revision of the mission statement produced by this process follows: “Advancing justice for all through leadership, education and service.” This language will be carried forward for further discussion as this process continues.
The Board of Governors also reviewed The Missouri Bar’s vision statement and concluded that the current vision statement – “Justice First” – should not be revised.
Ms. Cutler reviewed the current strategic plan goals, noting that these goals and the process to attain them would be improved by instituting a review of the document on a regular and frequent basis, perhaps reviewing one goal at each Board of Governor’s meeting, assessing the progress toward that goal and having one or more members of the Board responsible for the fulfillment of each strategic goal.
Ms. Cutler further noted that the Board survey conducted last year revealed that members of the Board of Governors wanted more avenues for involvement. She proposed for consideration, the development of a number of Board committees.
(1) Committees/Section Assessment Committee - This Board committee would participate with the Division Chairs to conduct an assessment of a pre-established percentage of Bar committees on an annual basis.
(2) Strategic Planning and Goal Assessment Committee - If a five-year leadership initiative were to be adopted to replace the current practice of annual individual presidential initiatives, this committee would work with the leadership to develop this multi-year approach consistent with the strategic plan objectives and this committee would also be responsible for the ongoing, regular review of the progress toward the achievement of the goals embodied in the strategic plan.
(3) Committee for Appointments - This committee would be responsible for establishing protocols and procedures for appointments made by the Board of Governors throughout the year and to identify diverse members of the bar to fill appointment vacancies.
(4) Resource Development Committee - This committee would be responsible for identifying and developing new streams of revenue and the best use of resources, so the Bar can better meet its needs and minimize the frequency and use of enrollment fee increases for this purpose.
Ms. Cutler suggested establishing a measuring tool to assess progress, proposing criteria gleaned from the survey of members of the Board of Governors. She noted that such criteria might encompass value; interest and involvement; and accountability and accessibility. The criteria represented by the acronym “VIA” might include the following analysis:
1. Are the programs, services and initiatives used to achieve the strategic goal of value to members?
2. Are the programs, services and initiatives generating greater interest and involvement of membership?
3. Are the programs, services and initiatives accessible and measures in place to establish accountability?
Ms. Cutler also reported on the possibility of creating new avenues to serve on the Board of Governors, noting an idea that would allow Division leaders under the new committee structure to ascend to a seat on the Board after serving two two-year terms in the divisional role. She noted that such a proposal would either require expansion of the Board of Governors or a reduction of the current number of board members to accommodate the new seats. She noted that a number of decisions would need to be made if the latter option was chosen, including how seats would be eliminated (citing the option of attrition), what districts would be affected, and how such a change would impact representation? She also noted a proposal that would make changes to the board officer leadership rotation from a St. Louis, Kansas City and outstate rotation to one that utilizes the three appellate districts. Discussion focused on whether such a change would more equally distribute board members representation and the impact it might have on ensuring equal opportunity for leadership from outstate areas as well as the impact where current board districts crossover multiple appellate districts. She indicated that information pertaining to this discussion would be distributed, including the number of lawyers in each district; where there is overlap pertaining to appellate districts; the number of lawyers by county; the survey results referred to; and the previous analysis of annual cost per board member. She further noted that any changes in this area would require a change in Supreme Court of Missouri Rules.
Ms. Cutler reported that comments and thoughts are welcome. She noted no action is anticipated until July or the Annual Meeting.
There being no further business, the meeting was adjourned.
Sebrina A. Barrett, Secretary