1. Welcome and Introduction of New Board Members and Special Guests:
Mr. Pat Starke welcomed the newly elected members of the Board of Governors who will begin their terms at the conclusion of this meeting. He also welcomed members of the bar, Missouri’s judiciary as well as the members of the 2013-14 Leadership Academy in attendance.
It was moved and seconded that the minutes from the Board of Governors meeting of July 12 and the Executive Committee meeting of July 11 be approved. The motion was approved.
A. Finance Report
Mr. Erik Bergmanis reported that the financial status remains in good order, noting that the year-to-date financial position of the Bar is approximately $200,000 ahead of the same time period last year. He reported that CLE programs and publications are both in the black and announced that three new publications have recently been released by CLE publications. He also called attention to the budget drafts for 2014 and 2015 calendar years included in the board packet.
B. Proposed Fee Increase
Mr. Erik Bergmanis reported that pursuant to Supreme Court Rule 6.01(j), the membership of The Missouri Bar has been notified that the Board of Governors is considering a fee increase of $75, which the Board believes will be required to continue to provide the services to members of the bar and to support its mission regarding the administration of justice. He noted that the increase is estimated to last for approximately five years, but cautioned that this estimate could vary based on such factors as inflation, public information needs related to attacks on the justice system, and/or access to justice issues. He reported that the Board approved the fee increase proposal at its July meeting and has provided the appropriate notices required by the Supreme Court Rule and that the next action will be to approve that the proposed increase be submitted to the Supreme Court of Missouri.
Mr. Pat Starke opened the floor for any members of the bar in attendance to address the Board of Governors regarding the proposed fee increase.
Several members of the bar rose to address the Board of Governors regarding funding for Legal Services Corporation offices within the state of Missouri. The Honorable Robert Dowd reported on the valuable role that Legal Services attorneys played in representing low-income individuals when he served as a trial court judge hearing landlord-tenant disputes. He stated that the Legal Services attorneys represented clients in approximately two-thirds of the cases in his court and noted that the work of the attorney played a critical role in being able to run the docket and provided a very important service to the judiciary.
The Honorable Booker Shaw also reported on the important role that Legal Services attorneys provided when he was an associate circuit judge hearing adult abuse and landlord tenant issues and the importance of this representation to the functioning of his dockets. He also expressed his opinion that pro bono work by private attorneys cannot supplant the reduction in funding and staff at the Legal Services organizations in the state. Both judges expressed their support for increased funding for Legal Services Corporation offices in Missouri.
Mr. Norman Lampton, chair of the Commercial Law Committee, explained that he represents creditors in his practice, that he personally supports increased funding for Legal Services Corporation offices in Missouri, but finds it challenging to explain to his clients why they should be funding Legal Services Corporations and why the issue is important.
Mr. Starke noted that the comments expressed pertain to and would be considered with the next item on the meeting agenda.
No other members of the bar rose to address the Board regarding the proposed enrollment fee increase. It was moved and seconded to approve submitting the proposed $75 increase to the enrollment fees for members of The Missouri Bar in categories 1 and 3, effective January 1, 2014, to the Supreme Court of Missouri. The motion was approved unanimously.
It was moved and seconded to accept the financial report. The motion was approved.
4. Formation of a Special Committee on Legal Representation for Missouri’s Indigent:
Supreme Court of Missouri Judge Richard Teitelman expressed his appreciation to members of the Board of Governors for their dedication to the bar, to the profession, and to the people of Missouri. He called attention to the written materials he provided to the Board regarding the funding challenges facing the Legal Service Corporation (LSC) offices in Missouri. He also commended the work of those lawyers who provide volunteer leadership, illustrating the hard work and selfless dedication of those committed to helping others through a personal remembrance of Joseph F. Devereux, a dedicated supporter of Legal Services of Eastern Missouri, who had recently passed away.
Mr. Jack Brady thanked Judge Teitelman for his comments and for providing the written materials to assist the special committee. He also expressed his appreciation for Judge Teitelman’s dedication to the profession, to the indigent, to those who are served by Legal Services Corporation as well as appreciation to the lawyers on staff at LSC who assist so many in the face of funding challenges.
Mr. Brady reported that it is his intention to appoint a special committee to conduct a comprehensive examination that looks at all facets of legal assistance to the indigent within the state. This would include identifying how services are currently provided, not only by Legal Aid offices, but also by other organizations across the state such as the entities currently listed on the Missouri Bar’s Pro Bono website, as well as exploring programs and initiatives in other states and utilizing resources available from the ABA. The objective will be to identify how services are currently being delivered and where the gaps and needs exist. The committee also will examine all options for funding legal assistance to the indigent.
Mr. Gregg Lombardi expressed appreciation to Mr. Brady and the Board for establishing this review and initiative and pledged the cooperation and support of all the Legal Services offices in the state. He described the tremendous need for legal counsel to assist the indigent; the current limitations and
challenges that Legal Aid offices face in trying to provide adequate services; and encouraged the exploration of the work already done in other states as well as within the ABA in this area.
It was moved and seconded to establish a Special Committee on Legal Representation for Missouri’s Indigent. The motion was approved.
A. September Appointments
(1) JPE Committees
(a) 7th Circuit (Clay County)
Mr. Pat Starke requested nominations for the one non-lawyer vacancy in this circuit. Hearing none, he reported that the nomination to fill this vacancy will be extended until November. He encouraged members of the Board to work diligently to identify non-lawyer nominees for the position on this JPE committee.
(b) 21st Circuit (St. Louis County)
Mr. Starke reported that three lawyers have been nominated to fill three vacancies on the JPE Committee for the 21st Circuit (St. Louis County). The nominees are: Mr. Ryan C. Turnage, Ms. Diane M. Gray and Ms. Ann E. Hamilton. It was moved and seconded that Mr. Turnage be appointed to the one full six-year term expiring in 2018 and Ms. Gray and Ms. Hamilton be appointed to fill the two vacancies to serve the remainder of terms expiring in 2016. Both Ms. Gray and Ms. Hamilton will be eligible for reappointment to a full six-year term at the conclusion of this appointed term. The motion was approved.
(c) Appellate Committee
Mr. Starke reported that Mr. John E. Price has been nominated to fill one lawyer vacancy on the Appellate JPE Committee from the Southern District for a term expiring in 2018. It was moved and seconded to appoint Mr. Price. The motion was approved.
(2) Trustees of The Missouri Bar
Mr. Starke reported that Carla Fields Johnson’s term as a trustee of The Missouri Bar is expiring and she is not eligible for reappointment. He reported that Mr. Jack Kilroy, Jr. has been recommended to fill this vacancy and he is willing to serve. It was moved and seconded to appoint Mr. Kilroy. The motion was approved.
B. November Appointments
(1) Complaint Resolution Committee
Mr. Starke reported that James Condry’s term on the Complaint Resolution Committee is expiring and the Board will vote on this appointment in November. He noted that Mr. Condry is eligible for reappointment and is willing to serve another four-year term.
6. Officers’ Reports:
A. President’s Report
(1) Senate Judiciary Committee Hearing
Mr. Starke reported that the Senate Judiciary Committee has elected to hold a hearing during the Annual Meeting. He reported that the meeting is scheduled for Thursday afternoon at 3 p.m. and encouraged all board members to attend. He reported that the committee will be hearing testimony on a number of issues, which will include funding of the Missouri Public Defender System and the revised Criminal Code legislation. Mr. Starke further reported that there is a strong likelihood that the Public Defender pilot program proposed previously will be funded and the hope is that the Missouri Senate will approve the revised Criminal Code legislation early in the 2014 session, so it can move on to the House.
(2) Attacks on Missouri’s Non-Partisan Court Plan
Mr. Starke reviewed the status of two proposed initiative petitions filed with the Secretary of State that would replace the nonpartisan appointment process for Missouri’s appellate and supreme court judges with direct elections. He reported that the initiative petitions would increase the size of the Supreme Court of Missouri by two judges, with estimated fiscal impact that could reach approximately $8 million. He thanked members of the board who made public comment regarding these proposals.
B. President-Elect’s Report
Mr. Brady also reported on the initiative petitions to change the nonpartisan court appointment process. He noted that there is still quite a bit of uncertainty regarding what will happen in regards to the two initiative petitions. He noted, however, that we will need to be prepared to fight to preserve the Nonpartisan Court Plan, stating that the work of Pat Starke to establish the Amicus Lex program puts us in a much better position to engage at a grassroots level. Mr. Brady further reported that it will be important to have members of the public part of our grassroots effort, if the initiative petitions ultimately go up for a vote by the electorate. He proposed establishing a committee, which will focus on making The Missouri Bar more relevant to the public using technology and the internet to provide resources and information to help educate members of the public about the justice system. He reported that this committee would be comprised of members of the Board as well as the Leadership Academy and the YLS.
He further proposed focusing on further enhancing The Missouri Bar’s relevance to members by continuing to expand the work of the Committee on Lawyers in a Changing Economy, including the use of podcasts and providing lawyers with the resources needed to efficiently and productively practice law.
He noted that part of this effort to enhance relevance to the members of The Missouri Bar will include a committee to examine the relevance of our current Missouri Bar committees. He noted that the practice of law has changed significantly over the years, with practices becoming more specialized and areas of law becoming more complex, and that it is essential for the committees to reflect these changes. He reported that this group, which will be made up of members of the Board and will work with committee chairs, will have the objective of reviewing scopes of the committees to ensure that they are up-to-date, relevant and reflect the current practice of law. He noted that this review could include identifying the need for changing and/or expanding committee scopes as well as eliminating, merging and/or adding new committees.
He also commended the work of Nancy Mogab, chairing the Governance Committee of the Board.
It was moved and seconded to establish a task force to address the issues of relevance which will include special committees as outlined by Mr. Brady. The motion was approved.
C. Vice-President’s Report
Mr. Shelton reported that he continues to focus on supporting the initiatives of the president and president-elect. He reported that he represented the Board leadership at the Family Law Conference in August. He further reported that he participated in a very productive meeting that leadership had with the members of the Supreme Court of Missouri; the new board orientation; and attended the open house for the new addition to the Missouri Bar Center in September. He noted that he met earlier this year with the Missouri Chapter of the Association of Corporate Counsel where he encouraged corporate counsel and become active in The Missouri Bar. He noted that he has been invited back in October to discuss specific initiatives to increase corporate counsel involvement. He reported that he participated in a newly produced video designed to educate the public about Missouri’s Nonpartisan Court Plan and that he continues to visit with past presidents of The Missouri Bar to draw on their wisdom and experience to assist him as he moves on to presidential leadership of the Bar.
D. Executive Director’s Report
(1) Economic Survey
Ms. Barrett reported that the 2012 Economic Survey has been completed and was distributed in the meeting packet. She reported that the survey has been conducted every two years since 1958. She introduced Member Services Director Lucas Boling to report on the 2012 survey results.
Mr. Boling reported that the survey, which is administered and compiled by the University of Missouri, was distributed to 4000 members of The Missouri Bar and had a 43% response rate. He called attention to the executive summary, which provides an overview of the results and described the extensive detail within the report including particular categories of interest such as solo practitioners, billable hours and office overhead. He noted this year’s results show that 56% of respondents experienced an increase in income from 2011 to 2012. He noted, however, the median income level declined overall for private practice and government attorneys, while increasing for corporate counsel for 2010-2012. He encouraged members of the Board to review the report and contact him with any questions.
Ms. Barrett further reported that the 2010 Economic Survey revealed that members experienced a 15% decrease in income level during the 2008-2010 period of the economic downturn and the results in the 2012 report indicate that members are holding their own, at best, and have not recovered from the income decrease experienced from 2008 – 2010. She noted that this information reinforces the need to ensure that the Bar is focused on relevance to members and their needs.
(2) Annual Meeting Update
Ms. Barrett reviewed the format modification in the Annual Meeting schedule, changing the awards event from a Friday night dinner to a Wednesday luncheon. She commended the staff who worked to realign the organizational process to make the change possible. She also reported that the passing of the gavel and President’s Awards presentation will now take place at the opening luncheon. Ms. Barrett also briefly reviewed the plenary sessions planned for this year’s meeting.
(3) Media Articles
Ms. Barrett called attention to the media articles included in the meeting packet.
(4) Special Election
Ms. Barrett reported that a special election will be held to fill the vacancy in District 8 created when Pat Starke becomes the immediate past president at the conclusion of this meeting. She explained that typically the end of a president’s term coincides with the end of their term as a board member, but Mr. Starke has one year remaining on his term representing District 8. She reported that the special election will be announced in ESQ and in a direct email to all members of District 8, allowing for a nomination period followed by an electronic election that will be completed in early November in time for the new board member to take office and attend the November board meeting.
Ms. Catherine Barrie briefly discussed the policy statement related to the review and approval process for legislative proposals, explaining that a motion and vote is required as to whether the proposal is within scope and a separate vote to approve or disapprove the legislative proposal, with both votes needing two-thirds in favor for approval. She reported that six legislative proposals would be considered – one from the Criminal Code Committee, one from the Commercial Law Committee and four from the Probate and Trust Committee. Ms. Barrie also reported that the measure from the Criminal Code Committee has been found to be in scope and was approved by the Board last year.
A. Revision of Missouri’s Criminal Code
Mr. Jason Lamb, co-chair of the Criminal Law Committee, provided an update on the six-year effort of the Criminal Code Subcommittee to conduct a comprehensive review of the Missouri Criminal Code and to propose revisions to the code. He reported that The Missouri Bar Board of Governors had previously approved and endorsed the proposed legislation, that it had been introduced in last year’s session, and that it is poised for approval in the 2014 legislative session. During discussion, concern was expressed that the version in the Missouri House is not as balanced as the originally drafted version and would increase incarceration. Mr. Lamb reported that the Criminal Code Subcommittee is requesting The Missouri Bar’s continued endorsement as the measure moves forward. It was moved and seconded to continue the endorsement of the revised Criminal Code legislation. The motion was approved.
B. Amendment to Statutes on Transcripts of Judgments Rendered by Associate Circuit Courts
Mr. Norman Lampton reported that the Commercial Law Committee had previously drafted and submitted proposed legislation that would allow associate division judgments to become judgment liens without filing transcripts of judgment with the circuit clerk. Action on the scope and merit of the legislation was deferred in 2012, so the committee could work with and find a consensus with the Missouri Land Title Association regarding its concerns with the legislation. Mr. Lampton reported that the Commercial Law Committee is asking the Board to defer action on this legislation again, so the committee can address problems identified in the legislation and reach a consensus that is acceptable to the diverse segments and interests represented in the Commercial Law Committee. It was moved and seconded to defer action on this legislation as requested. The motion was approved.
C. Statutory Language Abrogating the “Fiduciary Exception” to the Attorney-Client Privilege
Mr. Bob Selsor reported on a proposed statutory provision related to abrogating a “fiduciary exception” to attorney-client privilege which has been recognized by some courts based on the reasoning that a trustee’s duties and goals are ultimately for the benefit of the trust’s beneficiaries and the communications between such an attorney and a trustee relating to the trust’s administration should be transparent and readily available to beneficiaries. The Probate and Trust Law Committee, based on the recommendation of its Fiduciary Litigation Subcommittee, does not consider there to be a compelling distinction which justifies an exception to the attorney-client privilege in this context. It was moved and seconded that the proposed legislation was within scope. The motion was approved by two-thirds of the members present and voting. It was then moved and seconded that the proposal be approved for filing. The motion was approved by two-thirds of members present and voting.
D. Safe Harbor for Challenge of a “No Contest” or “in terrorem” Clause
Mr. Selsor also reported on proposed safe harbor legislation relating to no contest clauses. Specifically, if a trust instrument containing a “No Contest Clause” (a/k/a “in terrorem” clause) has become irrevocable, an interested person may file a petition with the court for an interlocutory determination whether a particular motion, petition, or other claim for relief by the interested person would trigger application of the clause which would result in forfeiture of their interest in the trust. It was moved and seconded that the proposed legislation was within scope. The motion was approved by two-thirds of the members present and voting. It was then moved and seconded that the proposal be approved for filing. The motion was approved by two-thirds of members present and voting.
E. Mandatory ADR Statute for Trusts
Mr. Robert Kirkland reported on proposed legislation that would create a new provision to the Missouri Uniform Trust Code (MUTC), which would specifically provide that the settlor of a trust may require the trustees and beneficiaries of the trust to resolve disputes relating to the trust by mediation or arbitration (also known as alternative dispute resolution or ADR). Mr. Kirkland reported that the Probate and Trust Law Committee unanimously supports this proposal as consistent with the settlor's absolute right to control distribution of his estate. Concerns were raised about denying parties access the court system to resolve their disputes without their consent. In addition, Mr. Pat Starke allowed a point of privilege to hear a comment from Mr. Norman Lampton, chair of the Commercial Law Committee, who expressed the opinion that the consumer lawyer segment of his committee will not be in favor of any provisions that allow for mandatory arbitration provisions as a matter of principle. It was moved and seconded that the proposed legislation was within scope. The motion was approved by two-thirds of the members present and voting. It was then moved and seconded that the proposal be approved for filing. The motion was approved by two-thirds of members present and voting.
F. Amendment to Qualified Spousal Trusts (QST)
Mr. David English, chair of the Probate and Trust Committee, reported on a proposed revision to 456.950 RSMo designed to clarify that property or interest in property held by a husband and wife as tenants by the entirety or as joint tenants or other form of joint ownership with right of survivorship shall be conclusively deemed for purposes of the section to be held as tenants by the entirety upon its transfer to the qualified spousal trust. Mr. English reported that the clarification addresses uncertainty as to the application of Missouri’s tenants by the entirety protections in relation to national financial products. It was moved and seconded that the proposed legislation was within scope. The motion was approved by two-thirds of the members present and voting. It was then moved and seconded that the proposal be approved for filing. The motion was approved by two-thirds of members present and voting.
8. Committee Reports:
A. Client Security Fund Committee
Mr. Chris Janku reported that the Client Security Fund Committee is recommending the payment of four claims for a total of $7,990 and the denial of six claims. He reported that the total payment of claims authorized to date is $40,473.01, which is well within the limit established under Article 2.10 of the rules and regulations governing the Fund. It was moved and seconded to approve the recommendation for payment and denial of the claims as recommended. The motion was approved.
Mr. Janku further advised the Board of Governors that the Client Security Fund Committee has completed its study and analysis regarding the development of a subrogation policy to recover funds from attorneys against whom claims have been paid. He reported that the analysis included a review of policies employed in other states and professional advice from legal counsel on the matter. He reported that the Client Security Fund Committee recommends that the Committee be granted discretion to seek recovery of money from an attorney when there is reason to believe that the amount is collectible and an attorney is willing to pursue recovery on a contingency fee basis. The motion was approved.
B. Veterans Initiative
Mr. Guest reported on an initiative started earlier this year to provide legal assistance to veterans and members of the military. He provided a review of actions taken, which included reviewing the programs that have been implemented in other states and establishing a task force to assist in the development of a program in Missouri. He noted that task force members were identified and recruited based on diverse expertise related to the legal needs of the veterans community and knowledge of the existing programs available within the state that are currently assisting veterans. He reported that the task force concluded that local committees would explore staging clinics in four areas across the state. Mr. Guest reported that committees in St. Louis and Kansas City are identifying what services can be provided in these two locations that do not duplicate existing services. Another committee is working on developing a program that works with the newly established veteran’s court in Boone County and that Greene County anticipates focusing one of the Springfield Metropolitan Bar Association’s regular “call for action” programs on veterans’ issues. Mr. Guest noted that he will keep the Board informed as efforts move forward.
C. Governance Committee
Ms. Nancy Mogab reported on the work of the Governance Committee, which specifically focused on addressing whether the size of the Board of Governors should be reduced. She reported that the Governance Committee recommends that the size of the board not be reduced at this time. She further reported that the committee developed some additional ideas that might improve the functioning of the Board at its current size and noted that these ideas are included in the written report. She also noted that one of the ideas – changing the Board terms from two years to three years – was inadvertently omitted from the final draft of the report. It was moved and seconded to accept the report at this time, allow time for a review the recommendations, and address actions at a future date, if appropriate. The motion was approved. Mr. Starke commended Ms. Mogab and the committee for their work.
9. Executive Session:
The Board went into Executive Session to discuss personnel matters.
10. Acknowledgement of Retiring Board Members:
Mr. Pat Starke offered comments and presented plaques honoring the retiring Board members for their service on the Board of Governors. The following Board members were recognized:
Hon. Richard Bresnahan
Robert S. Kenney
Hon. Mark H. Neill
Antwaun L. Smith
Lynn Whaley Vogel
Mr. Jack Brady recognized Missouri Bar President Pat Starke for his leadership during the 2012-2013 bar year.