Board Minutes

Board of Governors Meeting -- May 11, 2012
May 11, 2012
Jefferson City Capitol Plaza Hotel

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
Erik Bergmanis
Suzanne B. Bradley
Robert J. Buckley
Dennis J. Capriglione
Mark W. Comley
Hon. Charles Curless
Dana Tippin Cutler
Joel R. Elmer
Brian Francka
Wendy Garrison
John W. Grimm
James H. Guest
John R. Gunn
Richard F. Halliburton
Edward J. Hershewe
Hon. James F. Kanatzar
Hon. John F. Kintz
J. B. Lasater
Mark H. Levison
Mira Mdivani
Max E. Mitchell
Nancy R. Mogab
Douglass F. Noland
Joseph P. Rice, III
Brett W. Roubal
Reuben Shelton
Walter R. Simpson
Antwaun L. Smith
W. Douglas Thomson
Raymond E. Williams
Eric J. Wulff

Present by telephone:
Genevieve M. Frank
Robert S. Kenney
Hon. Mark H. Neill
Wallace Squibb

Members absent:
Hon. Richard Bresnahan
Vincent F. Igoe, Jr.
Neil F. Maune, Jr.
Lauren Tucker McCubbin

Also present:
Millie Aulbur
Sebrina Barrett
Catherine Barrie
Lucas Boling
Anne Chambers
Farrah Fite
Kent Hopper
Chris Janku
Cat Kelly
Jason Lamb
Dan Lehmen
Jeff Markway
Linda Oligschlaeger
Delores Shepherd
Robert Stoeckl
Hon. Richard B. Teitelman
Gary Toohey
Eric Wilson

1. Minutes:

It was moved and seconded that the minutes from the Board of Governors February 24 and April 19 meetings and Executive Committee meetings of February 23, March 9, March 23, April 6, April 13 and April 30 be approved. The motion was approved.

2. Finances:

Mr. Erik Bergmanis called attention to the fiscal status report for the period ending March 31, 2012 and reported that the finances are in good shape and budget revenues and expenditures are on track through the first third of 2012.

Mr. Bergmanis reported that the CLE Publications Department has maintained a positive balance since January of this year and he commended Kent Hopper. He further reported that plans are under way to purchase an e-commerce system, which will make it possible for the Bar to establish PCI compliance and will allow for integration with the IMIS database and accounting software. He reported that the e-commerce system is expected to cost a little more than $100,000, which was already included in the 2012 budget and that the system is expected to be in place by mid-summer.

3. Legislation:

Ms. Catherine Barrie reported on the status of Missouri Bar-drafted legislation for the 2012 term. She distributed copies of the final House vote count for SJR 51, which was finally agreed to and passed on May 10, to members of the Board of Governors. Ms. Barrie reported that four legislators got up on the floor and, in a passionate attempt, tried to persuade the body not to vote in favor of the joint resolution. Ms. Vogel noted other lawyer legislators were prepared to do so, but were not recognized.

Criminal Code Revision
Mr. Jason Lamb, co-chair of The Missouri Bar Criminal Law Committee, reported on the legislative progress of the Bar-drafted legislation to revise the Criminal Code. He reported that the legislation was introduced with identical bills in the House (HB 1897) and Senate (SB 872). He reported that neither measure received a hearing during the 2012 session, which was not unexpected. Both the Senate and the House passed Senate Concurrent Resolution 28 (SCR 28), which establishes a Joint Committee on the Missouri Criminal Code to review Missouri’s Criminal Code with recommendations to be reported by November 15, 2012. Mr. Lamb concluded that the actions to introduce the measure during the 2012 session and the subsequent vetting process put in place through SCR 28 indicates that the measure is on track as the comprehensive and voluminous measure was expected to require more than one year to move through the legislative process.

Probate & Trust Law Committee
Ms. Barrie reported that two measures drafted by the Probate and Trust Law Committee were introduced and received hearings during the session. She further reported that both measures are currently included in numerous legislative vehicles as a strategy to increase chances of approval during this session. The first of the two measures, HB 1165 and SB 636, addresses a technical change amending qualified spousal trust to clarify that multiple trusts may be created concurrently. The second measure, HB 1166 and SB 761, clarifies the law regarding trust protectors and details a trust protector’s rights and responsibilities.

Commercial Law Committee
Ms. Barrie reported that HB 1527 was finally passed and truly agreed to by the Legislature and has been sent to the governor for signature. This measure clarifies provisions of the exemption statute related to property exempt from attachment in bankruptcy to remove questions about the original intent of the General Assembly. It also makes a substantive change, increasing the age of a person’s unmarried dependent children from under 18 to under the age of 21 year for purposes of property exempt from attachment.

Special Committee on Adoption
Ms. Barrie reported that a measure related to post-adoption agreements, approved by the Board of Governors at the winter meeting, was introduced and heard. The measure, which is contained in two bills, has generally received broad support. She noted that the bar-drafted measure, HB 1994, would allow adoptive parents to enter into a post-adoption agreement with natural parents, allowing the natural parents contact with and information about the adopted child and to allow courts to enforce such agreements.

Ms. Barrie also called attention to a report outlining the final group of position statements taken on legislation by the Executive Committee. The report had been posted on the Board listserve and is also being provided during this meeting.

4. Committee Liaison Reports:

Advisory Committee on Citizenship Education (ACCE)
Ms. Dana Tippin Cutler reported on the work of the Advisory Committee on Citizenship Education (ACCE). Ms. Culter reported that plans are under way for the annual Summer Institute. The Institute, which is funded by The Missouri Bar Foundation, is expecting 32 teachers. Ms. Cutler announced that the Missouri Bar Citizenship Education program will receive a $15,000 grant from the ABA to develop and implement an educational program on civility. She also reported that the Citizenship Education Program was recently selected to receive a Telly Award for last year’s Constitution Day program. The program reached more than 10,000 Missouri high school students through its broadcast and rebroadcast in cooperation with HEC-TV. She explained that the Telly Awards recognize excellence in national, regional and local programming through film, video and webcasts and that the Constitution Day program was selected from more than 11,000 submissions from all 50 states. Ms. Cutler also shared a map which identified by county the participation in Missouri Bar teacher educational programs, demonstrating the reach of the Citizenship Education programming within the state of Missouri.

Minority Issues Committee
Ms. Cutler also reported as liaison of the Minority Issues Committee. She reported that the committee is very active, noting that plans are under way for its Diversity Summit for June 1 and 2 in Columbia. She also reported that the committee has appointed a subcommittee to maintain its website, in an effort to ensure that it serves as a resource to facilitate information and foster relationships with specialty bars across the state. She reported that the committee is discussing participation in a Kaplan educational services “pipeline” program designed to enhance interaction between students and professionals. The program under discussion would foster interaction between students as young as grade school with practicing attorneys. Ms. Culter also reported that the committee has experienced some challenges regarding communication with stakeholders involved with the legislation related to HB 1219 involving the Missouri Human Rights Commission. She requested that consideration be given to ways that will allow better communication with stakeholder groups regarding the reasoning behind Missouri Bar legislative positions taken.

Alternative Dispute Resolution Committee
Mr. Igoe will report in July.

Administrative Law Committee
Hon. John Grimm reported that the Administrative Law Committee is very active with specific focus on providing valuable CLE for members, mainly at the Spring and Fall Committee Meetings. He reported that today’s meeting included a CLE that addressed the federal administrative law issues. He noted that Dan Jordan serves as chair and has done an outstanding job. He further reported that Mr. Jordan, who is a Regulatory Judge at the PSC, is in his last year as chair and that the position of chair for this committee has traditionally shifted between a public and private sector attorney. He also reported that the committee completed the Fourth Edition of the Administrative Law deskbook last year.

Taxation Law Committee
Ms. Gen Frank reported that the Taxation Law Committee has new leadership with the current chair, Charles Jensen, and is moving in a very positive direction. She reported that the committee, which had not met regularly, held a joint CLE today with the Business Law Committee, as well as a separate Taxation Law Committee meeting. She reported that in addition to today’s meeting, members have been discussing issues online.

Animal Law Committee
Ms. Frank reported that the Animal Law Committee had originally planned to meet today, but canceled the meeting. She reported that the chair of the committee, Dana Apple, related that very few lawyers specifically practice animal law in Missouri, but that many have an interest in the subject mainly from either an animal rights or an animal welfare perspective. Ms. Frank reported that the chair is interested in increasing involvement in the committee by developing a pilot program that encourages committee members to get involved in their local municipalities regarding issues related to the number of pets allowed per household. Ms. Frank reported that Ms. Apple has developed a draft website to support the issue and the program, which she proposes be named the Plus One Pet Project. It was noted that such a program would need to be formally presented to the Executive Committee before consideration by the Board. Ms. Frank reported that she would convey this information to Ms. Apple.

Criminal Law
Mr. Joel Elmer reported that a major focus of the Criminal Law Committee has been the effort to revise the Criminal Code as described to the Board earlier in the meeting and at previous meetings. He commended the subcommittee working on that revision for the time and effort dedicated to this project. He also noted that this committee has a very strong focus on providing excellent CLE at both the Spring and Fall Committee Meetings, including a CLE presentation today that was attended by approximately 100 lawyers.

Delivery of Legal Services Committee
Mr. Richard Halliburton reported that the DLS committee continues to be very actively working to increase the scope and depth of civil legal services to low income citizens in the state. He reported that the committee’s work is primarily accomplished through three subcommittees – (1) Outreach, (2) Website and (3) Research and Education. He noted that all three subcommittees concentrate on different areas to improve pro bono participation among attorneys within the state. He noted that many of the new initiatives developed by these subcommittees have come before the board including: voluntary reporting of pro bono hours, recognition programs such as the online Pro Bono Wall of Fame, and a pro bono website for lawyers interested in finding opportunities and organizations to where they can provide assistance. He further reported that the Research and Education subcommittee has recently initiated an effort to contact and expand the involvement of law school personnel and law students in pro bono activities.

Mr. Richard Halliburton reported that during the Delivery of Legal Services Committee meeting held this morning, the committee approved a motion to recognize and show its appreciation to Missouri Bar President Lynn Whaley Vogel for her extensive work statewide in promoting pro bono service and for her many successful efforts in this regard.

Insurance Programs
Mr. Halliburton also reported that the Insurance Programs Committee, which consists of Janet Baker and Michelle W. Tilton, devotes a tremendous amount of time monitoring programs and companies that the Bar has endorsed to provide insurance services and products of different types to bar members. Five insurance companies are noted in the committee’s written report as having product and/or services that are currently endorsed by The Missouri Bar. The companies and the currently endorsed services/products are:

Tax Favored Benefits for retirement planning services for Missouri Bar members.
The Guardian as the provider of the non-cancellable disability insurance product for Missouri Bar members.
The Bar Plan as the provider of the life insurance product for Missouri Bar members.
Mutual of Omaha as the provider of the cancellable disability insurance product for Missouri Bar members.
David Rismiller from the McInnes Group as the broker for health insurance programs.
Mr. Halliburton reported that the committee has requested that the Board continue to endorse the previously endorsed programs and services of the five companies as described in the accompanying report and to approve new insurance endorsements for two of the companies – McInnis Group as the health insurance broker and a non-exclusive endorsement of the Mutual of Omaha for long-term care insurance for Missouri Bar members – with the understanding that any such endorsements may be changed or adjusted at any time in the future. It was moved and seconded to continue endorsement of the five companies for the services and program listed in the report and to approve the new endorsements as recommended by the committee. The motion was approved. Mr. John Gunn abstained from the motion as it relates to The Bar Plan.

Editorial Board
Hon. James Kanatzar reported that the Editorial Board is made up of 10 members comprised of both lawyers and judges who oversee operations and policies related the Journal of The Missouri Bar. Eight of the members serve on the screening committee which reviews, approves and edits the submitted articles for the publication. He reported on the current status of articles approved or under review for approval for upcoming editions and commended Gary Toohey and staff for their work in publishing this important resource.

Eminent Domain Committee
Hon. Charles Curless reported that he had not yet received a report from the committee chair.

Environmental and Energy Law Committee
Mr. Robert Kenney reported that this is a very good and active committee, chaired by Ed Cohen. He reviewed examples of relevant and timely CLE programming that the committee has offered at committee meetings last fall and today. He reported that the committee is considering a proposed project to develop a resource that would benefit communities that are responsible for smaller sewer systems, helping these communities to comply with the laws and maintain environmental compliant systems.

Tort Law
Mr. Ed Hershewe reported that this committee is very active under the strong leadership of Roger Nail. He reported that the committee` held a joint CLE with Civil Practice & Procedure Committee and the Transportation Law Committee today and that the program also included involvement with issues raised by the Commercial Law Committee regarding the business records laws. He further reported that today’s program was very well attended and included very engaging conversation.

Insurance Law
Mr. Hershewe also reported on the Insurance Law Committee. He reported that the committee presented a phenomenal CLE program today featuring the Director of Insurance. The chair is also considering options to put together joint CLE presentations with other committees when possible.

Local Government Law
Mr. Brian Francka reported that the chair Barbara Birkicht is providing very good leadership to this committee. The committee typically meets twice per year at the Fall and Spring Committee Meetings. He noted that the committee typically presents an excellent CLE program at its meetings and did so today with a featured speaker and panel program. He noted that the committee has very good attendance at its meetings. He also reported that the chair is considering organizing additional meetings for the committee. The committee has been working hard to create a committee webpage on The Missouri Bar website and the liaison for the YLS also agreed to create newsletter for the committee.

Military Law Committee
Mr. James Guest reported that Thomas Rynard is providing fine leadership for this committee. He reported that the committee is relatively small, comprised of current members of the military and veterans. They plan to meet in October during the Annual Meeting. Mr. Guest noted that he is working with the committee chair on strategies for Missouri to develop a program modeled on an “Oklahoma lawyers for America’s Heroes” initiative, which provides legal services to veterans just returning home from active service and deployment. Mr. Guest and Mr. Rynard are meeting to discuss how best to proceed.

Client Security Fund Committee
Mr. Chris Janku reported that the Client Security Fund Committee met on April 27 and is recommending for Board approval the payment of 22 claims totaling $21,530 and the denial of 11 claims. He reported that all of the claims recommended for payment are for $2,500 or less. He also reported that at the February meeting, the Board of Governors authorized payment of three claims for $38,621.65. He noted that the February authorization along with today’s recommendation would bring the total payments recommended in 2012 to $60,151.65, which is below the $107,000 limit pursuant to Article 2.10. Mr. Janku also reported that as of March 31, 2012, the Client Security Fund contained $387,331.88.

Mr. Janku further reported that the committee continues its consideration of employing private legal counsel to recover money from attorneys against whom claims have been paid. The committee has reviewed information from other jurisdictions and is discussing the possibility with attorneys who have experience in collections law. He reported that the committee hopes to have a recommendation for the Board’s consideration at a future meeting.

In addition, he reported that at the April meeting the committee requested that the Supreme Court and Office of Chief Disciplinary Counsel contact the Bar to determine if any Client Security Fund claims are pending or have been paid against an attorney seeking reinstatement to good standing after being suspended for dues, MCLE or tax non-compliance.

5. Report of Missouri’s Legal Services Programs for 2011:

Mr. Halliburton called attention to a written report included in the board materials. He expressed appreciation on behalf of Missouri’s legal services offices for the continued support of The Missouri Bar through bar dues earmarked funds and the Pro Hac Vice funds. He noted that the unrestricted nature of bar dues and Pro Hac Vice funds are very important in that they allow legal services offices the flexibility to apply the funds where they are most needed. He also reported reductions in other funding for 2011, noting that the state’s legal services offices experienced a 4% reduction in funding from Legal Services Corporation and a 5% decrease in funding from the Missouri Basic Civil Legal Services Fund. He further noted that federal LSC funding for Missouri offices has been cut another 15% for 2012, which translates in to about a $1 million reduction in funding and estimated that the funding decreases will mean that legal services offices will be able to serve about 1,000 fewer clients in 2012. He concluded by calling attention to examples in the report of the typical cases handled by Missouri’s legal services offices.

6. Appointments:

May Appointments
(1) Fee Dispute Resolution Committee
Mr. Keith Birkes reported that Mr. Gary Stamper’s first term is expiring and he is eligible and willing to be reappointed. He reported that Ms. Betty Preston’s second term is concluding, and she is not eligible for reappointment. Mr. Birkes further reported that Mr. Kenneth J. Labit has been recommended to fill the vacancy and that Mr. Labit is willing to serve. It was moved and seconded to reappoint Mr. Stamper and appoint Mr. Labit. The motion was approved.

(2) Intervention Committee
Mr. Birkes reported that Mr. Charles Ross Rhoades had been appointed to fill an unexpired term last year and that this term is now expiring. Mr. Rhoades is eligible and willing to be reappointed. He further reported that Mr. Gary Burger, a longtime volunteer with the Lawyers Assistance program, has been recommended to fill a second vacancy on the committee and he is willing to serve. It was moved and seconded to reappoint Mr. Rhoades and appoint Mr. Burger. The motion was approved.

(3) ABA House of Delegates
Mr. Birkes reported that the Board of Governors appoints seven delegates to the ABA House. He noted that traditionally three of the seats are filled by past presidents of The Missouri Bar who traditionally serve two, two-year terms. He also noted that one delegate seat has traditionally been used to establish seniority and extended involvement in the ABA. In addition, the Bar has maintained one seat for a minority representative and a seat for a young lawyer representative.

He further reported that the seats of the three past presidents are expiring and the current delegates – Ron Baird, Tom Burke and Charlie Harris – are all eligible and willing to serve a second term. He also reported that Doreen Dodson is completing her ninth term as our long-term delegate, and she is eligible and willing to be reappointed. It was moved and seconded to reappoint the three past presidents to a second term and the long-term delegate to a 10th term on the ABA House of Delegates. The motion was approved.

July Appointments
Mr. Birkes reported that here are no appointments for July.
7. Officers’ Reports:

President’s Report
(1) Citizenship Education Programs
Ms. Vogel reported that she has had the privilege of interacting with young people from throughout the state through the programs of The Missouri Bar Citizenship Education programs. She expressed appreciation for the opportunities to take part in these programs and noted that the programs reach thousands of students and foster civic interest, involvement and education throughout the state.

(2) Pro Bono Wall of Fame
Ms. Vogel expressed satisfaction with the launch of the online Pro Bono Wall of Fame program. She explained that the program is intended to draw positive attention and give recognition to lawyers who are providing 40 hours or more of pro bono service to help low-income citizens with legal counsel needs and to also encourage even more lawyers to consider making a similar commitment to pro bono work in their practice.

(3) Local and Specialty Bar Speaking Engagements
Ms. Vogel reported that she and Sebrina Barrett have continued with speaking engagements at local and specialty bars across the state, noting the value of these face-to-face meetings in establishing relationships with the members, providing an opportunity for members to meet incoming Executive Director Sebrina Barrett and to convey the many resources and services offered by the bar. Ms. Vogel displayed a map indicating locations visited to date.

(4) Carol Chazen Friedman Scholarships to Solo and Small Firm Conference
Ms. Vogel reported that the member of The Missouri Bar Board of Governors have fully funded two scholarships to the upcoming Solo and Small Firm Conference in the name of Carol Chazen Friedman. She thanked the members of the board for their support of this effort.

(5) Next Board Meeting
Ms. Vogel reminded the board that the summer meeting is scheduled for July 19 – 21 at Big Cedar.

President-Elect’s Report
No report

Vice-President’s Report
No report

Executive Director’s Report
Mr. Birkes reported that the Executive Director transition has been proceeding in a very positive fashion in all respects. Mr. Birkes reported that he and Sebrina Barrett have been functioning as co-Executive Directors. He reported on several staff transitions noting that Jim Brady and Jack Wax both retired and reporting that two excellent professionals have been hired to the vacated staff director positions.

Ms. Sebrina Barrett introduced and welcomed Anne Chambers the new Director of Missouri Bar Lawyers’ Assistance program and Farrah Fite who was hired to fill the Media Relations Director position. Ms. Barrett provided a brief overview related to the professional experience of both of the new directors.

8. Report on the Missouri Public Defender System:

Ms. Cat Kelly provided a brief report on the status of the Missouri Public Defender System as it relates to the system’s funding crisis and certification regarding maximum client capacity. She provided two written reports: (1) a timeline showing efforts regarding the MSPD funding and capacity crisis and the wide range of activities and action that have taken place to address these issues during the past several years and (2) a report focusing on the status of issues related to the certification process that the MSPD uses to certify whether an office is at maximum capacity and will no longer accept additional cases.

Ms. Kelly reported that the Supreme Court of Missouri is yet to rule on litigation related to the protocol used to decide when an office is at maximum capacity. She reported that all but a handful of defender offices statewide are eligible to be placed on limited availability as soon as the appropriate procedures are clarified through a ruling of the Supreme Court of Missouri. She reported that seven defender offices, serving 22 counties, remain certified. Eight more offices, serving 33 counties, are pending certification. While the certified offices have informed the courts that they are not accepting appointments, the courts continue to overrule the certification notices and appoint the offices anyway, pending the outcome of the litigation before the Supreme Court. Ms. Kelly reported that once the ruling is made, it is anticipated that MSPD will need the assistance of private attorneys to meet the need and fulfill the constitutional requirement regarding appointed counsel.

9. Executive Session

The Board entered executive session to discuss litigation and personnel issues.

There being no further business, the meeting was adjourned.

Respectfully submitted,

Keith A. Birkes, Executive Director