Board Minutes

October 17, 2012
St. Louis Hilton at the Ballpark

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
Hon. Richard Bresnahan
Robert J. Buckley
Dennis J. Capriglione
Mark W. Comley
Hon. Charles Curless
Dana Tippin Cutler
Joel R. Elmer
Brian Francka
Genevieve M. Frank
Wendy Garrison
John W. Grimm
James H. Guest
John R. Gunn
Richard F. Halliburton
Hon. James F. Kanatzar
Robert S. Kenney
Hon. John F. Kintz
J. B. Lasater
Mark H. Levison
Lauren Tucker McCubbin
Mira Mdivani
Max E. Mitchell
Nancy R. Mogab
Hon. Mark H. Neill
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:
Edward J. Hershewe
Neil F. Maune, Jr.
Wallace Squibb

Members absent: Vincent F. Igoe, Jr.

Also present:
Millie Aulbur
Sebrina Barrett
Catherine Barrie
Lucas Boling
Anne Chambers
Jim Cole
Farrah Fite
Kent Hopper
Chris Janku
Jason Lamb
Dan Lehman
Mike Magliari
Linda Oligschlaeger
Gwenda Renee Robinson
Delores Shepherd
Allan Stewart
Robert Stoeckl
Gary Toohey
Eric Wilson

1. Welcome and Introduction of New Board Members

Ms. Lynn Whaley Vogel welcomed the new Board members taking their seats at the conclusion of this meeting: Nicole Colbert-Botchway, Michael Gardner, Gregg Lombardi, Tricia Scaglia and Joan Swartz.

2. Minutes:

It was moved and seconded that the minutes from the Board of Governors meetings of July 20 and September 5, and Executive Committee meeting of July 19 be approved. The motion was approved.

3. Finances:

Mr. Erik Bergmanis reported on the financial status of The Missouri Bar through the end of the third quarter. He reported that the financial situation is good, especially with the very tight budget climate this year. He reported that as of the end of the third quarter of the year, 96.2% of projected revenues have been received and 67.3% of the projected expenses have been expended. He reported that financials are currently tracking approximately 6-7 percent below budget, and he hopes that this margin will continue until the end of the year. He reported that CLE programs and CLE publications are both reporting positive revenue at this point. He also reported that this is the first year that the budget received Pro Hac Vice fee revenue and that the fees received to date are approximately $40,000. He commended staff on their attention to efficient financial management.

Ms. Vogel also reported that the ABA recently released a study of the budgets for state bars throughout the U.S. She reported that The Missouri Bar received results of the report on the 18 states that make up the Southern Conference of Bars. She noted that the report shows that The Missouri Bar was the most efficient bar in the Southern Conference, in relation to number of staff, budget and services offered per capita. She and the board commended the staff. It was moved and seconded to accept the financial report. The motion was approved.

4. Legislation:

Ms. Catherine Barrie briefly reviewed the policy related to the review and approval process for legislative proposals, explaining that a motion and vote is required as to whether a proposal is within scope and a separate vote to approve or disapprove the legislative proposal on merit, with both votes needing two-thirds in favor for approval. She reported that four legislative proposals would be considered, one each from the Commercial Law Committee, Probate and Trust Law Committee, Family Law Section, and the Criminal Law Committee. She also noted that in addition to the materials provided in the board packet, two other items were distributed at this meeting. They were: a letter from Prof. David English, chair of the Probate and Trust Law Committee, regarding that committee’s proposed legislation and a letter from the Springfield Metropolitan Bar Association related to the Criminal Law Committee proposal.

Amendment to Statutes on Transcripts of Judgments Rendered by Associate Circuit Courts
Mr. Jim Cole reported that the Commercial Law Committee had drafted and submitted proposed legislation that would allow associate division judgments to become judgment liens without filing transcripts of judgment with the circuit clerk. He explained that the current requirement to file a transcript was put in place when the associate division cases were maintained separately from the circuit clerk records. He reported that this system is no longer in place and that as part of court consolidation the circuit clerks handle records of both the associate and circuit divisions. Mr. Cole went on to report that this proposed change is supported by the circuit clerk’s office as it would result in a reduction in cost, elimination of duplicative efforts and a reduction in workload. He further reported that the proposed change is opposed by the Missouri Land Title Association (MLTA). MLTA opposed the legislation for a variety of reasons that would impact workload, cost, and ability to clear title in real estate transactions. Mr. Cole reported that the committee would like to defer action on the legislation’s scope and merit until the November meeting, so the committee can work with MLTA to address their concerns and create a consensus regarding the proposed legislation.

Amendment to 513.40.1 RSMo to Clarify That Inherited IRAs and HSAs are Exempt from Creditor Claims
Mr. Mike Magliari reported that the Probate and Trust Committee is proposing an amendment to 513.40.1 RSMo that would clarify that a “health savings plan, or similar plan, including inherited account or plan” are exempt from creditor claims “whether such participant’s or beneficiary’s interest arises by inheritance, designation, appointment or otherwise.” He noted that inherited IRAs and HSAs may already be exempt from creditor claims but enough uncertainty exists as to impair proper planning for clients. It was moved and seconded that the legislation was in scope. The motion was approved by two-thirds of the members present and voting. It was moved and seconded that the proposed legislation be approved for filing. The motion was approved by two-thirds of the members present and voting.

Criminal Code Revision
Mr. Jason Lamb, who co-chairs the Criminal Law Committee, provided an update on the status of the criminal code revision legislation, which had received Board approval for filing in the 2012 legislative session. Mr. Lamb reported that the legislation was filed in both the House and Senate during the 2012 session. He reported that the Missouri Legislature chose to establish a Joint Interim Criminal Code Committee to review the legislation. He further reported that the joint legislative committee held hearings on the proposed changes, which included hearing testimony from members of The Missouri Bar’s Criminal Code Subcommittee who participated in the drafting of the code revisions. He reported that the joint committee also heard public comment on the proposed legislation. He further reported that the joint committee has completed six weeks of hearings on the code and is scheduled to present its final report by the November 15 deadline. Mr. Lamb reviewed some of the major changes proposed in the legislation from the Criminal Code Committee, including establishing a fifth class of felony cases addressing a gap in sentencing under the current four classes of felonies, restructuring within the classes, and addressing the establishment of fines for first time offenses. He further addressed concerns raised by the Springfield Metropolitan Bar Association that the code revisions were vague and overbroad, noting that the code revisions were the result of four years of work by experienced practitioners from both the criminal prosecution and criminal defense side. He reported that he has emailed the organization to clarify which provisions the organization is referring to in its objection, but that he disagrees with the objection. It was moved and seconded that the proposed legislation was in scope. The motion was approved by two-thirds of the members present and voting. It was moved and seconded that the proposed legislation be approved for filing. The motion was approved by two-thirds of the members present and voting.

Post Adoption Agreements
Mr. Allan Stewart, chair of the Family Law Section, reported on proposed legislation that would allow adoptive parents to enter into a post-adoption agreement with natural parents to allow them contact with and information about the adoptee and to provide for judicial enforcement of those agreements in Missouri. Mr. Stewart explained that the proposed legislation would help clear up the status of the law in Missouri, noting that older case law says that post adoption agreements are unenforceable and the current statute says that they are allowed at the discretion of the adoptive parents. Mr. Stewart reported that this legislation originally came out of the Special Committee on the Termination of Parental Rights in Adoption and was approved by the board last February, filed, but did not pass during the 2012 session.

Discussion included the impact that similar statutes have had on adoptions in other states, the need for a statute making agreements enforceable in Missouri, the potential for increased litigation, issues of contractual rights established under such legislation, how such rights would be balanced against the child’s best interest and the potential impact such legislation would have on moving more children from foster care to adoption. 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 moved and seconded to approve the legislation as drafted. The motion failed to receive the two-thirds vote from the members present and voting.

5. Appointments:

October Appointments
(1) Trustees of The Missouri Bar
Mr. Birkes reported that Mr. John Ruth’s second term as a trustee was expiring and he is not eligible for reappointment. He further reported that Steve Newman has been nominated to fill the vacancy and, if approved, would also serve as Treasurer. It was moved and seconded that Mr. Newman be appointed to the Trustees of The Missouri Bar and to serve as its treasurer. The motion was approved.

November Appointments
No action was required on November appointments.
6. Committee Reports:

Lawyers in a Changing Economy Committee
Mr. Ray Williams provided a brief review regarding the establishment of this committee, its initial focus and ongoing work, including developing a significant online presence with information and links to resources which can be helpful as attorneys adapt to the challenges they face in a changing economy. He reported that the committee’s latest initiative – an online Practical Skills Video Series – is well under way. He further reported that the videos will cover substantive areas of law as well as practice management subjects, including video resources on how to start a law practice. He explained that the practice series model is designed to provide valuable educational content to lawyers without competing with MoBar CLE programs, noting that the 15 minute videos do not qualify for CLE credit. He reported that the prototype of the first of the 15 minute videos on traffic tickets will be online soon and he provided a timetable for the development of the series, including a list of subject areas to be covered, volunteer presenters and anticipated completion dates for the production of additional videos. He reported that committee is soliciting additional subject area ideas for future videos and continues its call for volunteers to present content. Mr. Williams praised staff assistance in developing this online video series. He concluded his report by asking members of the Board to share any ideas they may have for additional programs or initiatives that will help lawyers adapt and succeed in a changing economy.

Young Lawyers Section Council
Lauren Tucker McCubbin reported on Young Lawyer Section activities. She reported that the YLS had put together and distributed survival kits for individuals taking the bar exam and provided information to the new lawyers at enrollment ceremonies held in Jefferson City in early October. She also reported that the YLS has implemented an initiative to make younger lawyers aware of and gain their support for the preservation of the Non-Partisan Court Plan. She reported that this initiative included events held earlier in the month in Kansas City, Columbia and St. Louis and will include another event scheduled for later in the month in Kansas City. She further reported that the YLS is actively participating in new lawyer educational programs, including a two-day practical skills program – Stepping Up & Stepping Out – in coordination with MoBar CLE and the presentation of an Annual Meeting New Lawyer Practice Management Series featuring programs in criminal law, family law and ethics issues for new lawyers. Ms. McCubbin also reported that the YLS is sponsoring its post-Best of Missouri social event at the Three-Sixty Lounge on Thursday evening and she introduced her successor, Michael Gardner, as the new YLS representative on the Board of Governors.

7. Officers’ Reports:

President’s Report
Ms. Lynn Whaley Vogel acknowledged the members of the new class of The Missouri Bar Leadership Academy in attendance at the meeting, encouraging the Board of Governors and Leadership Academy members to get to know one another during their time together at the Annual Meeting.

(1) Status of Efforts to Defeat Amendment 3
Ms. Vogel thanked the members of the Board of Governors who have made a financial contribution to the efforts to defeat Amendment 3, reporting that she anticipates 100% participation when the final contributor report is compiled. She encouraged members of the Board to proudly display their support of efforts to defeat Amendment 3 by wearing one of the buttons available at the registration desk. She further reported that proponents of Amendment 3 do not appear to be providing financial support for the initiative. She noted that the proposed constitutional amendment initiative has provided an opportunity for The Missouri Bar to educate the public about the Non-Partisan Court Plan, as well as an opportunity for the Bar to engage membership, and for members to engage their communities. She noted that the number of bar members who have volunteered to speak in opposition to Amendment 3 exceeds opportunities to do so. She noted that many members of the bar used the opportunity to personally contact and engage clients by mail. She commended all of the efforts as an effective and impressive response of the profession, producing a positive impact by members of the bar.

(2) Private Lawyer Appointment in Criminal Cases
Ms. Vogel reported that some circuits have begun appointing private lawyers to address the issues related to the Missouri Public Defender caseload crisis. She reported that these circuits are addressing the issues according to their particular circumstances and that there is no statewide initiative under way. She noted that the cooperative work of the prosecutors and defense attorneys to revise the criminal code is an example of how the two sides can work together and that this cooperation provides a basis for optimism that they can also work together for a solution to this issue.

(3) Executive Committee Report and Recommendations
Ms. Vogel reported that upon adjournment of this board meeting, a vacancy will exist for the diversity seat on the Board of Governors from the Western Appellate District, as Mira Mdivani vacates that board position to assume her term as a newly elected board member from the Kansas City area. Ms. Vogel reported that the diversity seat vacancy will be communicated to the members of The Missouri Bar and applications will be accepted from qualified members. She reported that the appointment of a successor to Ms. Mdivani will be on the agenda for action at the November board meeting.

(4) Annual Meeting Update
Ms. Vogel thanked Reuben Shelton and Dorothy White-Coleman for an excellent job of co-chairing this year’s Annual Meeting. She acknowledged and thanked the members of the planning committee and staff for all of the work done to develop and produce a successful Annual Meeting, noting the additional challenges encountered with the Cardinals in the National League playoffs. She called attention to the educational programming and encouraged attendance at the evening social events, including the Best of Missouri Reception at the Peabody Opera House and the Awards Banquet scheduled for Friday night.

(5) Media Articles
Ms. Vogel called attention to the packet of media articles provided in the board materials.

(6) Miscellaneous
Ms. Vogel thanked the staff of The Missouri Bar for all their work during her term.

President-Elect’s Report
Mr. Pat Starke commented on the initiative to defeat Amendment 3, encouraging members of the Board not to be complacent in light of the apparent decision by its supporters to not actively fund the constitutional initiative. He reminded the Board that it is risky to presume victory and asked that efforts continue in earnest until the November 6 election is over. He also reported that Amendment 3 is just one phase in a long-term and relentless attack on the Non-Partisan Court Plan and called attention to the opportunity that is available to educate the public and build a solid base of public understanding and support for the Non-Partisan Court Plan for future attacks on the process.

Mr. Starke thanked the staff for their efforts to produce a successful Annual Meeting, noting that Board members would be very impressed to look behind the scenes to realize what it takes in terms of equipment, coordination and staffing to produce the meeting.

Mr. Starke further reported that it will be important to ensure that the members of The Missouri Bar have a sense of predictability in regards to any process related to private lawyer appointments in response to the Missouri Public Defender caseload issue. He reported that he has had several conversations with the Supreme Court of Missouri in which he discussed the need for predictability, the avoidance of confining appointments to lawyers from particular practice areas, and he noted that an existing rule in the Jackson County circuit used to govern the appointment of lawyers may provide guidance on issues related to the appointment process.

Vice-President’s Report
Mr. Brady commented that a very strong coalition has been formed as part of the effort to defeat Amendment 3 and he reported that efforts should continue to keep this coalition together to better respond to future attacks on the Non-Partisan Court Plan. He also reported that efforts next year will continue to focus on issues related to lawyers in a changing economy, as well as efforts to address the challenges that are surfacing regarding issues related to aging lawyers and their continued practice of law. And he further reported that efforts are anticipated to increase the broader engagement of members with The Missouri Bar.

Deputy Executive Director’s Report
Ms. Sebrina Barrett thanked the members of the Board for their support while she was on maternity leave. She reported that she is back from leave and has once again assumed her duties within the Bar. She reported that some members of the board chose to receive their meeting materials electronically for this meeting and asked that these board members provide feedback about their experience with this new practice. She also reported that all members can choose to receive materials electronically, by mail or both.

Ms. Barrett further reported that plans to add another floor to The Missouri Bar Center in Jefferson City are proceeding. She reported that the Trustees of The Missouri Bar approved the addition to the building and work with an architect on plans for the addition is under way. She further reported that bids are going out for the construction of the addition with the hope that work will actually begin around the end of November. She noted that more details will be reported at the November board meeting.

Executive Director’s Report
Mr. Keith Birkes commended the work of Ms. Barrett during the transition period of the past year and a half, noting their dual leadership relationship and welcoming Ms. Barrett back from maternity leave. He reported that the final phase in the transition of leadership is beginning. He further reported that in the coming weeks, he looks forward to a solid defeat of Amendment 3, preparation of the 2013 budget of The Missouri Bar for review at the November meeting and construction regarding the new addition at the Bar Center.

8. Executive Session:

The Board of Governors went into executive session.

9. Acknowledgement of Retiring Board Members:

Ms. Lynn Whaley Vogel offered comments and presented plaques honoring the retiring Board members for their service on the Board of Governors. The following Board members were recognized:

Dennis J. Capriglione
Richard F. Halliburton
Vincent F. Igoe, Jr.
Hon. James F. Kanatzar
Lauren Tucker McCubbin
10. Acknowledgement of Outgoing President Vogel:

Mr. Patrick Starke recognized Missouri Bar President Lynn Whaley Vogel for her leadership and accomplishments during the 2011-2012 bar year.

There being no further business, the meeting was adjourned.

Respectfully submitted,

Keith A. Birkes, Executive Director