Board Minutes

Board Minutes - July 8, 2011
Members present:
John S. Johnston, President
Lynn Whaley Vogel, President-Elect
Patrick B. Starke, Vice-President
H. A. “Skip Walther, Past President
Keith A. Birkes, Secretary

Bevy A. Beimdiek
Erik Bergmanis
Stephen R. Bough
Suzanne B. Bradley
P. John Brady
Robert J. Buckley
Dennis J. Capriglione
Mark W. Comley
Hon. Charles Curless
Dana Tippin Cutler
Joel R. Elmer
Brian Francka
Carol Chazen Friedman
Genevieve M. Frank
Richard F. Halliburton
Edward J. Hershewe
Vincent F. Igoe, Jr
Hon. James F. Kanatzar
Marie A. Kenyon
Hon. John F. Kintz
J. B. Lasater
Mark H. Levison
Lauren Tucker McCubbin
Hon. Karen King Mitchell
Max E. Mitchell
Nancy R. Mogab
Hon. Mark H. Neill
Douglass F. Noland
Joseph P. Rice, III
Brett W. Roubal
Deanna K. Scott
Allan D. Seidel
Walter R. Simpson
Wallace Squibb
Raymond E. Williams
Eric J. Wulff

Members by telephone:
John W. Grimm
Neil F. Maune, Jr.

Members absent:
Hon. Richard Bresnahan
Jennifer M. Joyce
Reuben Shelton

Also present:
Millie Aulbur
Sebrina Barrett
Catherine Barrie
Lucas Boling
Jim Brady
Kent Hopper
Chris Janku
Dan Lehman
Jeff Markway
Linda Oligschlaeger
Alan Pratzel
Hon. William Ray Price, Jr.
Delores Shepherd
Robert Stoeckl
Gary Toohey
Hon. Richard B. Teitelman
Jack Wax
Eric Wilson

1. Minutes:

It was moved and seconded that the minutes of the meeting of the Board of Governors and of the Executive Committee of May 13 be approved. An amendment was offered to correct the May 13 minutes to reflect that Judge John F. Kintz was present at the meeting. The motion as amended was seconded. The motion as amended was approved.

2. Finances:

Mr. Eric Bergmanis reported on the status of Missouri Bar finances. He reported that finances are in good shape, noting that as of May 31, 2011 disbursements were at 36.9 percent of budget with 75 percent of revenue collected. He reported that the annual audit had been completed by Williams Keepers LLC and indicated that if expenses continue as projected, The Missouri Bar should end the year within budget.

3. Legislation:

Ms. Catherine Barrie circulated initial drafts of bar-drafted legislation anticipated for the 2012 legislative session. She reported that the drafts were being distributed for information, noting that some of the proposed measures distributed are only suggestions and have not yet been reviewed and approved by any bar committee. She reported that presentations would be made on proposed bar-drafted legislation at the board meeting scheduled for September. She further reported that additional bar-drafted legislation from a special committee that has been reviewing the criminal code is expected and that a special committee on the termination of parental rights in adoption may also propose legislation for the 2012 legislative session.

She reported that the governor has until July 14 to sign or veto legislation passed during the 2011 legislative session. Two bar-drafted measures are awaiting signature by the governor: (1) Legislation to remove the 2012 sunset provision for the Basic Legal Services Fund, extending the sunset provision to 2018 and (2) an Omnibus Judiciary bill (HB 111) which included a provision for the reclassification of certain misdemeanors. This provision had originally been part of a proposal drafted by The Missouri Bar’s Criminal Law Council.

Ms. Barrie also provided a written summary of the governor’s action on truly agreed to and finally passed bills as of June 23, 2011.

4. Leadership Academy:

Academy co-chairs Krystal Watley and Angela Alvarez Simmons reported on the activities of this year’s class and introduced the 13 members. Each member reported their two-year post-Academy commitment to the Bar, and designated members reported on the group’s annual project, a manual for young lawyers, which will be distributed to newly admitted lawyers at the next two enrollment ceremonies.

5. Appointments:

A. Judicial Performance Evaluation Committees

Mr. Johnston requested input and feedback from the board regarding the vacancies on the Judicial Performance Evaluation Committee, noting that two vacancies exist in Clay County, one in Jackson County, two in St. Louis County and one in St. Louis City. He reported that the Executive Committee will have recommendations for these appointments and appointments will be made in September.

B. July Appointments

There were no appointments for July.

C. September Appointments

(1) Trustees of The Missouri Bar

Mr. Johnston reported that Fred Drakesmith’s first term as a Trustee will be expiring. He further reported that Mr. Drakesmith is willing and eligible for reappointment. It was moved and seconded to reappoint Mr. Drakesmith. The motion was approved.

6. Committee Reports:

A. Client Security Fund Committee

Mr. Keith Birkes reported that the Client Security Fund Committee is recommending the payment of seven claims for a total of $9,000 and the denial of two claims. Mr. Birkes reported that the regulations and rules governing the Client Security Fund allow for the payment of claims of $2,500 or less throughout the fiscal year. He further reported that claims for amounts of more than $2,500 are held until the end of the year, and that 31 such claims are currently pending for action. It was also noted that OCDC makes reimbursement a requirement before reinstating a lawyer on probation when a claim against that lawyer has been paid from the Fund. A motion was made and seconded to approve the recommendation of the committee. The motion was approved.

B. Pro hac vice

Ms. Lynn Ann Vogel provided a report of the special committee of the Executive Committee and Board of Governors appointed to consider whether The Missouri Bar should recommend to the Supreme Court of Missouri that the state’s pro hac vice fee be raised. Ms. Vogel reported that the special committee met in June and addressed the following: (a) whether the fee should be raised and, if so, by how much? (b) how the money generated by the fee should be used or allocated? (c) should there be any exceptions for which the fee should be waived or reduced? and (d) whether changes should be made to the rule regarding the role of in-state attorneys?

Ms. Vogel reported that the special committee recommends an increase in the fee, raising it to equal the annual bar dues paid by lawyers who have been practicing three or more years (currently $305) and paid per matter or case for which the out-of-state attorney is seeking the status. It was moved and seconded for the committee to draft a rule to raise Missouri’s Pro hac vice fee to be equal to the annual dues fee paid by a Missouri Bar lawyer who has been in practice for three or more years and the fee be applied per case, per lawyer, per year and take effect upon the anniversary of the pro hac. A motion was made and seconded to amend the original motion removing the per year requirement. The motion to amend the original motion was approved. The original motion was approved as amended.

Ms. Vogel reported that a majority of the committee agreed that the funds generated by the fee should be divided: 60% to Legal Services offices; 20% to Office of Chief Disciplinary Counsel; and 20% to the Missouri Bar Client Security Fund. It was also noted that should applications remain at current levels, the funding generated by the fee could double. It was noted that currently 100% of the funds generated are allocated to Legal Services. Concerns were raised about a shared distribution in light of dire budget reductions expected for Legal Services. It was also noted that the Client Security Fund works with limited funds allocated annually by the Board of Governors, which requires the committee to make difficult decisions as to the payment of claims. Mr. Alan Pratzel reported that OCDC is adequately funded, does not anticipate additional cases with the pro hac vice changes suggested, and that OCDC does not, therefore, need a portion of the allocation. The committee was instructed to take the discussion as to the allocation under advisement and return with a recommendation at the September meeting. It was requested that any recommendation also include a review process related to such allocation.

Ms. Vogel reported that the committee did not reach a consensus about including any exceptions in the proposed rule. She reported that possible exceptions discussed within the committee included (1) law professors at ABA accredited law schools performing pro bono services and (2) expanding a fee waiver or fee reduction to law professors and any out-of-state attorney not receiving remuneration for representation. Concerns were raised about administrative burdens associated with findings of indigency and potential unintended consequences an expanded fee waiver might have. It was further noted that in the current rule, the Court has the discretion to waive the fee on a case-by-case basis, and if this discretion is retained in a new rule, no specific exception may be needed.

Ms. Vogel reported that while no consensus was reached within the committee as to the role and involvement required by an in-state attorney, consideration was given to adopt a rule similar to Kansas, requiring that an in-state attorney be actively engaged in the conduct of the case, including signing all pleadings, documents, briefs, to be present at oral argument and that service on the in-state attorney would have the same effect as that made on out-of-state pro hac counsel. It was moved and seconded to develop a Missouri pro hac vice rule regarding Missouri attorney involvement to reflect the same language as the Kansas rule. Following discussions about the Kansas rule, this motion was withdrawn. It was moved and seconded to instruct the committee to study, develop, and draft a rule with broad language that would require Missouri attorneys to be at depositions and hearings and the like and that the draft rule be distributed to other committees and the board for review and consideration. The motion was approved.

C. Young Lawyers Section Council

Ms. Lauren Tucker McCubbin, YLS representative to the Board of Governors, reported on various YLS programs and activities, including an affiliate outreach meeting, a task force on employment issues, the release of a newly updated Domestic Violence handbook using ABA grant funding, a program to recognize young lawyers reporting pro bono hours and YLS efforts to assist in Joplin. Ms. Tucker McCubbin also made the board aware of a new YLS website, efforts to take part in a regional YLS meeting in August and the development and distribution of a survival kit for those taking the bar exam.

D. Executive Committee

Mr. Johnston reported on various matters discussed by the Executive Committee
during its meeting on July 7:

(1) Committee to Review CLE

Mr. Johnston reported that Mr. Stark will chair a special committee to review revenue issues related to Missouri Bar CLE. He reported that the CLE Department has been losing revenue. He also reported that this committee will give consideration to the future need for printed materials, noting the changing publications environment related to electronic options.

(2) Fee Dispute Resolution Program

Mr. Johnston reported that the Bar Association of Metropolitan St. Louis has discontinued its Fee Dispute Resolution program due to funding issues. He reported that the Executive Committee agreed that it is the responsibility of The Missouri Bar to expand its Fee Dispute Resolution program to encompass the St. Louis area, previously served by the BAMSL program. He noted that the program serves to reduce potential disciplinary actions against lawyers and is a public responsibility. He indicated that this action is expected to increase the caseload of The Missouri Bar’s program three-fold. He reported that the Executive Committee has made a number of recommendations to the Fee Dispute Committee intended to limit the increase in expense associated with this action including increasing the amount in dispute from $100 to $500 and instituting efficiencies into the process. He concluded that there will, however, be an increase in cost to run the Missouri Bar program and this may include the addition of a staff person.

(3) Durable Power of Attorney

Mr. Johnston reported that the newly revised and updated version of the Durable Power of Attorney is now available and that it is accessible on The Missouri Bar’s website. He further noted that the form will also be reviewed for intellectual property issues by counsel.

(4) Summer Meeting Lodging Accommodations

Mr. Johnston reported that the current lodging arrangements at the summer board meeting are becoming too expensive. He reported that plans will be implemented, starting with next year’s meeting, to shift lodging locations within the venue to the less expensive options. He noted that lodging assignments will be addressed with the board for next year’s meeting.

7. Board of Governors’ Election:

Mr. Johnston reported that a handout is being distributed with the final list of candidates who have filed for election or reelection to the Board of Governors. He noted that there are more than two candidates

for the diversity seat in the Western District and requested that members of that district caucus remain after the meeting to consider whether they wish to reduce the number of candidates as allowed by the rule. Mr. Birkes also noted that the name of a candidate for the ninth district – Chris Stiegemeyer – was inadvertently left off of the list in the material being distributed at this meeting and he requested that board members add Mr. Stiegemeyer’s name to the handout being distributed.

8. Missouri Bar Social Networking:

Ms. Sebrina Barrett reported on the progress of the Missouri Bar’s social media initiative, approved by the Board of Governors in May. Ms. Barrett reported that all three social media platforms –Facebook, Linkedin and Twitter – have been implemented. She reported that since the May board meeting, the Facebook platform has attracted almost 300 Facebook fans, with a very even distribution by age demographic (about one-third from each range 25-34, 35-44 and over 45). She reported that this includes some fans from overseas, and that 21,000 page views were recorded during the first month. She reported that the Facebook presence is already serving the purpose of getting information about the Bar out to the public.

She further reported that the LinkedIn platform has 92 members and plans are moving forward to get groups started on this media. She reported that The Missouri Bar currently has 90 followers on Twitter, and the Bar originated 90 tweets during the month of June. She also noted that Twitter was used at the Solo and Small Firm Conference with 15 -20 active participants using the social media platform during the meeting offering an additional way for attendees to get involved in the conference. She also called attention to a handout being distributed at this board meeting with instructions on how to participate in each of these social media platforms.

9. Officers’ Reports:

A. President’s Report

(1) Disaster Relief

Mr. Johnston reported on the efforts of the bar in response to the Joplin tornado disaster. He expressed the pride he felt in the efforts of The Missouri Bar, Legal Services of Western Missouri, The Springfield Metropolitan Bar and MATA and the more than 200 lawyers who volunteered to provide legal assistance onsite and by telephone to those affected by the disaster. He also commended The Missouri Bar staff involved in recruiting volunteer attorneys and coordinating onsite efforts. He further reported on the personal loss of one of the young victims of the disaster, a Joplin high school student who had been active in The Missouri Bar’s “We the People” program.

(2) Congressional Visits

Mr. Johnston reported the officers traveled to Washington D.C. in June and met with all but one member of Missouri’s Congressional delegation and discussed funding for legal services and other issues related to the administration of justice, including the Lawsuit Reduction Act.

(3) Special Committee on Adoption Issues

Mr. Johnston reported on the work of the Special Committee on Termination of Parental Rights in Adoption, which was appointed to address issues that arose in a widely publicized case of adoption and the termination of parental rights of an undocumented person. He reported that the special committee is made up of family, immigration and juvenile practitioners and judges and is working on procedures, checklists and possible legislation to address issues brought to light in the case.

(4) Kansas City Annual Meeting – September 21-23, 2011

Mr. Johnston reported that the Annual Meeting planning is in great shape and and highlighted plans for the Thursday Best of Missouri reception at the Liberty Memorial.

(5) Recent media coverage

Mr. Johnston called attention to media coverage provided in the meeting packet.

(6) Other Matters

Mr. Johnston reported that Merit Selection Summit is proceeding. Supreme Court Justice Sandra Day O’Connor is coming, approximately ten other bars will be participating and more are expected.

He further reported that the Senate Judiciary Committee has appointed an informal committee to look at merit selection. He noted that it is uncertain what will result from this committee, which does not include representation from The Missouri Bar.

B. President-Elect’s Report

(1) Winter Board Meeting Location

Ms. Lynn Ann Vogel announced the location for the winter board meeting in 2012 will be at the Ameristar hotel in St. Charles and provided information on the venue.

(2) Mentoring Program Restructuring

Ms. Vogel reported that plans are under way to restructure the Mentoring Program.

(3) Pro Bono

Ms. Vogel reported that the main focus during her year as president will be pro bono in addition to the Non-Partisan Court Plan. She reported plans to highlight pro bono and encourage more Missouri attorneys to get involved. She noted that lawyers will be encouraged to voluntarily report their pro bono hours and that those who report more than 40 hours annually will receive public recognition by being added to a “wall of fame” on the pro bono website.

(4) President’s Social Media Efforts

Ms. Vogel reported that she will be engaging members through social media with a President’s Facebook page and through the regular use of Twitter next year. She noted that these platforms will be a president’s social media presence and passed on at the end of her term.

(5) Disaster Planning

Ms. Vogel reported that she will be continuing to build on the disaster preparedness brought into focus with President Johnston and the bar’s efforts in Joplin and that she is interested in raising awareness in this area for lawyers and law firms in Missouri. Plans include focusing on this issue in one of the annual PSAs.

(6) Staff and Program Transitions

Ms. Vogel noted that attention will need to be paid to staff transitioning in 2012 and also to the evaluation of programming.

(7) Future of the Profession

Ms. Vogel called attention to the increasing focus on the changes taking place in the profession, calling attention to an ABA Foundation article on the future of the profession and noting that these issues will be monitored and addressed in the coming year as well.

(8) Reinstituting Committee Chair Orientation

Ms. Vogel announced plans to reinstitute the Committee Chair Orientation at the upcoming Annual Meeting. She will also be looking at the interaction of board liaisons with committees.

(9) Establishing a Legislative Counsel

Ms. Vogel also announced plans to develop a legislative council made up of lawyers who would serve as a non-partisan contacts and resources for members of the legislature on legal issues. She noted that this initiative would be modeled after a program that has been successful in Alabama. The goal will be to establish lawyers as legal advisers, assisting members of the legislature, most of whom are not lawyers.

C. Vice-President’s Report

Mr. Pat Starke reported that he’ll be primarily working on financial issues related to CLE in light of Internet and technology and on the work of the Vision Committee, which is reviewing current objectives related to board meetings and activities.

D. Executive Director’s Report

Mr. Birkes called attention to written reports in the meeting materials, most related to programs that are administered by Linda Oligschlaeger and Jim Brady. Mr. Birkes complimented the work and assimilation of Deputy Executive Director Sebrina Barrett into The Missouri Bar, reporting that transition activities are on track.

There being no further business, the meeting was adjourned.

Respectfully submitted,

Keith A. Birkes, Secretary