2017-2018 BOARD OF GOVERNORS MEETING
November 17, 2017
Capitol Plaza Hotel, Jefferson City
Morry S. Cole, President
Raymond E. Williams, President-Elect
Thomas V. Bender, Vice-President
Dana Tippin Cutler, Immediate Past President
Betsy AuBuchon, Treasurer
Sebrina A. Barrett, Secretary
Robert J. Buckley
Michael J. Colona
Mark W. Comley
Hon. Joseph Dandurand
Deborah K. Dodge
J. Brent Dulle
Joel R. Elmer
John R. Gunn
Hon. J. B. Lasater
Max E. Mitchell
Joseph A. Morrey
Douglass F. Noland
John E. Price
Tricia M. Scaglia
Deanna K. Scott
Hon. Jason M. Sengheiser
Joan M. Swartz
Hon. W. Douglas Thomson
Eric J. Wulff
Jerri J. Zhang
Present by telephone:
W. Perry Brandt
Hon. Charles Curless
Athena M. Dickson
John W. Grimm
Robert E. Jones
Lauren Tucker McCubbin
Dr. Tony Simones
Mr. Morry Cole welcomed the members of the board and guests. He noted that each meeting during the year will feature a spotlight on the practice of law in one area of the state and will also feature a treat from that area. Mr. Cole introduced Mr. Jason Paulsmeyer and Mr. Mark Comley who provided a description of the practice of law in mid-Missouri and Cole County.
Mr. Cole also introduced Dr. Tony Simones, the new director of Citizenship Education for The Missouri Bar. Ms. Sebrina Barrett reported that Dr. Simones succeeds Millie Aulbur who will retire at the end of the year. Ms. Barrett noted that Dr. Simones had served as Judicial Education Manager at the Office of State Courts Administrator (OSCA) and had taught at the university level including at Missouri State University before joining The Missouri Bar team.
Mr. Cole asked if there were any changes to the Board and Executive Committee minutes included in the meeting materials. It was moved and seconded to receive and approve the minutes of the Board of Governors meetings of September 13, 2017, and the minutes of the Executive Committee meetings of September 13, September 15, September 21, October 13 and October 30, 2017. The motion was approved.
Mr. Cole reported that following a brief financial report from Judge Doug Thomson, the Board will go into executive session to discuss 2018 budgetary and personnel matters. Judge Thomson reported that as of September 30, The Missouri Bar has received approximately 92% of budgeted receipts, primarily from enrollment fees. He further reported that total disbursements as of the period are at approximately 60% of budget. He noted that disbursements for this period do not include expenses related to the Annual Meeting. He reported that overall receipts are down compared with the same period last year, explaining that several one-time financial activities make up the difference citing the hosting of the Southern Conference of Bar Presidents, sponsorships specific to the previous year, and the sale of print shop equipment as examples. He noted that when removing these one-time activities, receipts are on track. He further reported that disbursements are up about $157,000 compared to the same point last year. He noted that the expenses include costs related to strategic planning activities and an automobile purchase. Judge Thomson reported that the nets for CLE Programs and CLE Publications are up compared to the same point last year. He reported that reserves are currently at just under $13 million, with approximately $10 million invested. He noted that the average rate of return on the investments is 1.8% as compared to .4% four years ago. He noted that the strong reserve position can be directly attributed to budget savings during the past two years.
It was moved and seconded for the Board of Governors to go into executive session. The motion was approved.
A. Update on General Assembly and 2018 Regular Session
Mr. Eric Jennings reported that the members of the Board of Governors can expect to receive a comprehensive pre-2018 Legislative Session email in about one week. He reported that efforts underway to secure Senate and House sponsors for the 2018 bar-drafted measures. He reported that Sen. Bob Dixon has already agreed to serve as primary sponsor for Missouri Bar legislation in the Senate and Senator Sifton will be asked once again to serve as co-sponsor.
He further reported that Rep. Robert Cornejo has been asked to sponsor the Assignment for Benefit of Creditors (ABC) (2018-04) legislation and Rep. Dean Plocher has already agreed to sponsor the Uniform Fiduciary Access to Digital Assets Act in the House of Representatives. Mr. Jennings further reported that sponsorship identification for the rest of the probate and trust legislation is awaiting the appointment of a new chair of the House Judiciary Committee, explaining that the typical practice is to discuss sponsorship by the chair and/or to otherwise obtain the chair’s suggestions for bill sponsors in the House of Representatives. Mr. Jennings reported that all bar-drafted legislation is on track and will be ready for filing by the December 1 pre-filing deadline.
B. Committee-Drafted Legislative Proposals Assignment for Benefit of Creditors (ABC) (2018-04)
Mr. Jenning noted that the Board of Governors had approved legislative proposal 2018-04 (ABC) in principle at its September meeting, pending approval of final bill language at this meeting. An initial draft prepared by Senate Research had already been forwarded to the originating subcommittee today for review. The drafting comments provided by Senate Research were relatively minor, and Mr. Jennings did not expect the final version to contain any substantive changes from the one approved in principle by the Board of Governors in September.
Noting the advantages to introducing measure early, on the first day of pre-filing, Mr. Jennings indicated that Government Relations would recommend to the Board that it consider delegating approval of the final bill to the Executive Committee, in order to allow for early submission. It was moved and seconded to delegate authority to the Executive Committee to approve a final version of the Assignment for Benefit of Creditors (ABC) (2018-04) bill. The motion was approved.
A. November Appointments
(1) Client Security Fund Committee
Mr. Doug Noland reported that the first term of Ms. Lisa Machicao is expiring and she is eligible for reappointment. It was moved and seconded to approve the Appointments Committee’s recommendation to reappoint Ms. Machicao for a second term. The motion was approved.
(2) Lawyer-to-Lawyer Dispute Resolution Committee
Ms. Noland reported that the terms of Judge James L. Eiffert and Mr. Ron Mitchell are expiring and both are eligible for reappointment. It was moved and seconded to approve the Appointments Committee’s recommendation to reappoint Judge Eiffert and Mr. Mitchell for another term. The motion was approved.
(3) Missouri Lawyer Trust Account Foundation
Mr. Noland reported that Mr. Lynn Hostetler, the non-lawyer member to the Foundation appointed by the Board of Governors, has served two terms and is not eligible for reappointment. He further reported that the Appointments Committee received three nominations to fill the vacancy. It was moved and seconded to approve the Appointments Committee recommendation to appoint Ms. Paula Baird to fill this non-lawyer position. The motion was approved.
(4) Commission on Retirement, Removal, and Discipline
Mr. Noland reported that 23 applications were received for two lawyer positions on the commission that will become vacant on December 31, 2017. Mr. Noland described the extensive review process conducted by the Appointments Committee, including meetings by telephone and in person, to arrive at its recommendation. It was moved and seconded to appoint Mr. Pat Starke and Mr. Cary Mogerman to fill the two vacancies on the commission. The motion was approved.
6. Committee Reports:
Mr. John Gunn reported that this committee was initially charged with conducting a thorough review of the Bylaws of The Missouri Bar and the Conflict of Interest Policy on behalf of the Board of Governors, in order to incorporate best practices and modernize these documents. The four-week review process conducted by the committee included an initial review utilizing the expertise of outside counsel, an internal review by staff, committee research of best practices within the profession, and multiple meetings. He reported that the result is a redlined version of the Restatement of the By-Laws As Amended, which had been provided in the board materials. He noted that the proposal incorporated proposed additions and amendments and includes nuanced adjustments, updated language, language clarifications, the incorporation of best practices, and changes designed to harmonize the by-laws with Rule 7, where necessary. It was moved and seconded to adopt the proposed amendments to the Restatement of the By-Laws As Amended as recommended by the committee. The motion was approved.
A. Bylaws Committee
Mr. Morry Cole noted that a second phase of the process will shift the focus of this committee to governance, which will include a review of geographic districts and the executive committee selection processes.
B. Board Elections Committee
Ms. Sebrina Barrett reported that the Board of Governors Election Committee recommends two changes to Supreme Court of Missouri Rule 7 related to electronic elections of the Board of Governors. She reported that the first recommendation would change the petition filing date in Rule 7.07(b) from July 1 to June 20. Ms. Barrett explained that this change will allow for more time to process the petitions, to prepare the ballot with supporting materials prior to the commencement of the elections on July 20, and eliminate conflicts that had arisen with the current deadline in close proximity to Independence Day. She further reported that the recommendation includes adding specific language to the rule that indicates if June 20 falls on a weekend, petitions will be received until the next following business day, a change that will codify within the rule a traditional practice that has been followed. She reported that the second recommendation is to remove the phrase “prior to the election” in Rule 7.075(d) Notification of Election, explaining that the requirement of prior notice has caused confusion for the electronic elections. Mr. Cole reported that the Executive Committee has also reviewed and approved the changes being recommended for approval.
It was moved and seconded to approve the recommendations of the committee. The motion was approved.
C. Client Security Fund Committee
Ms. Cindy Neagle reported that the Client Security Fund Committee met on October 20 and reviewed 50 claims. She reported that the committee recommends the payment of 28 claims for a total of $67,203, the denial of 18 claims, the deferral of four claims, and authority for the committee to make recommendations on the deferred claims by November 2018. She noted that the committee is deferring the four claims to collect additional information needed to make a determination. She further reported that the balance of the Client Security Fund is $547,749 as of October 31 and the budget appropriation for 2018 is $275,000. It was moved and seconded to approve the recommendations of the committee as stated. The motion was approved.
D. Commission/Division Assessment Committee
Mr. Brent Dulle reported that the Board Assessment Committee recommends the reinstatement of the Paralegal Committee to active status. He reported that the committee had been placed on a two-year probationary status due to inactivity. He noted that the committee has new leadership, has seen a substantial increase in activity, and offers value to members of The Missouri Bar and the paralegal community. It was moved and seconded to approve the recommendation to reinstate the committee to active status. The motion was approved.
Mr. Dulle also reported that the Board Assessment Committee recommends that the Zoning and Eminent Domain Committee be realigned so that the Eminent Domain Committee becomes a stand-alone committee, while Zoning is incorporated into the Land Use, Planning and Development Committee. It was also recommended that the Eminent Domain Committee and the Real Estate Practice and Procedures Committee move from the Business/Corporate Division to the Litigation Division. He reported that these requests were initiated by the leadership of the committees involved and endorsed by the appropriate Division Chairs affected. It was moved and seconded to approve the realignments as recommended. The motion was approved.
Mr. Dulle reported that the Board Assessment Committee was asked to develop a formal process to follow for members of The Missouri Bar to propose the formation of a new open enrollment committee to the Board of Governors for its review and approval or disapproval. In addition, this committee was asked by leadership to develop a proposal to authorize the formation of connect.MOBAR discussion groups that are not directly affiliated with a Missouri Bar committee and a process for members to propose this new type of new discussion group to the Board of Governors for approval or disapproval. He reported that two processes have been developed and approved by the Board Assessment Committee and the processes along with the authorization to allow for the establishment of connect.MOBAR discussion groups that are not affiliated with a committee are recommended for board approval. It was moved and seconded to approve the recommendations as presented. The motion was approved.
Mr. Morry Cole called attention to his written report which was provided in the meeting packet. He further reported that the officers met this week with the judges of the Supreme Court of Missouri, noting that such a meeting is typically held twice a year and offers an opportunity to have an open and productive conversation and candidly share thoughts and ideas that benefit The Missouri Bar, the Court, and the administration of justice.
Mr. Cole also commended the members of the Board of Governors for their responsiveness, engagement and kindness and all of the hard work that is being done to institute best practices. He explained that the strategic planning analysis is providing an opportunity to ensure that our focus and work will be on programs and activities that serve hundreds or thousands, making the most efficient and effective use of our resources. He noted that MOLAP would be one possible exception to the hundreds and thousands standard, noting that reaching one lawyer who is struggling justifies the value of this program and that reaching one lawyer will, in fact, reach hundreds and thousands when considering the impact on that lawyer’s family, firm, clients, friends and community.
Mr. Cole noted that The Missouri Bar is doing very well, that there are currently no major challenges, and that he believes it is important to take advantage of this time for members of the board to include activities that strengthen relationships and camaraderie among the Board of Governors. He indicated that this relationship-building will pay dividends during more challenging times that will inevitably come.
Mr. Cole provided a report on the “CLE by the Sea” program scheduled for March. He reported that 76 members have registered and his goal is 90 registrants. He noted that the meeting has a strong sponsorship level. He reported that a special guest of great interest to the attendees is expected for the Thursday CLE program and that a group of 150 attendees signed up to attend a St. Louis Cardinals spring training game Thursday afternoon. He concluded by, once again, commending the members of the Board of Governors for their work and dedication to best practices
E. Public Defender Committee
Mr. Mike Colona provided an update on the work of the Public Defender Committee of the Board, reporting that the committee has conducted a comprehensive survey and analysis of identified issues relating to the State Public Defender System; the prior work that has been done to address these problems; and how The Missouri Bar has and may in the future help to address the challenges. He reported that the members of this committee have reviewed a comprehensive survey and analysis provided by Government Relations Counsel focusing on issues and efforts spanning the past twenty years, including actions taken and studies produced or commissioned by the General Assembly or The Missouri Bar. Members of the committee have spoken to stakeholders directly involved in the daily challenges faced in providing constitutionally effective legal counsel to those who cannot afford an attorney, and the committee has provided recommendations to the Executive Committee for review. Mr. Colona reported that the work of the committee has revealed that the problems persist, past solutions have made a difference in efficiencies of the Public Defender System, and opportunities exist for The Missouri Bar to continue and to increase its strong support for the Public Defender System in the state, including reinforcing the obligation of lawyers to protect the constitutional right to effective counsel. He described a current model used by the Missouri Coalition for Right to Counsel, a non-profit group that has provided significant assistance through a cooperative alliance with large law firms to provide legal counsel for clients of the Public Defender System. He reported that the committee’s report, with its preliminary recommendations, will be reviewed by the Executive Committee and that it is anticipated that this report will be presented to the Board of Governors at its next meeting.
7. Member Benefits Proposals:
Mr. Ray Williams reported that the Special Committee to Assist Lawyers in a Changing Economy met in October to review pending proposals for 11 new member benefits and discounts. He reported that the Special Committee approved a recommendation to the Board of Governors to authorize the Executive Director to negotiate and enter into agreements with all 11 new member benefit companies as listed in the proposal provided in the board materials. He reported that the Special Committee recommends that one of the member benefits, Trustbooks, be approved subject to the company confirming that the accounting software will comply with Rule 4.15 and all trust account requirements specific to the practice of law in Missouri. It was moved and seconded to approve the Special Committee’s recommendation as stated. The motion was approved.
8. Officers’ Reports:
A. President's Report
B. President-Elect’s Report
Mr. Ray Williams expressed thanks to members of the Board of Governors for completing the Strategic Planning Committee survey, noting that their responsiveness makes it possible to move forward with the program evaluation phase.
Mr. Williams reported that he recently attended the Solo and Small Firm Planning Committee meeting, commending the committee’s work and process to sort through hundreds of educational program proposals to finalize the 65 programs that will be presented at the conference. He encouraged members of the Board of Governors to attend the summer conference, which offers excellent value to members of The Missouri Bar. Mr. Williams also reported that he attended the YLS tailgate at the University of Missouri football game, noting that the tailgate had tremendous attendance and serves as an excellent social activity. He encouraged members of the Board of Governors to attend these tailgates when the opportunities present themselves.
Mr. Williams provided a redline proposal, approved by the Solo and Small Firm Committee, requesting the Supreme Court of Missouri consider changing Rule 4-1.15(c) to provide an exception that would allow certain fees, such as flat fees or case expenses up to $1,000 that are usually quickly expended by the lawyer, to be deposited directly into the lawyer’s operating account, rather than the current rule requirement to deposit such funds into the trust account, until earned. Mr. Williams further reported that the proposal includes a comment that would address issues related to requiring a refund of such fees if the representation is terminated or funds haven't been earned based on a safe harbor period as well as a comment that clarifies criteria to avoid commingling of earned funds with trust account funds to better guide lawyers in this regard. Mr. Williams reported that the proposed rule change would serve the dual purpose of improving operational efficiency within law offices, allow lawyers to spend less time on administrative operations, and give lawyers the opportunity to use the savings realized to help address the justice gap, reduce certain fees, and improve the ability of those with moderate means to afford the services of a lawyer. Mr. Williams reported that the proposed change is not anticipated to have a significant or substantial negative impact on the interest earned by the IOLTA foundation.
It was moved and seconded and the Solo and Small Firm Committee recommends that the Board of Governors authorize The Missouri Bar to request the Supreme Court of Missouri give consideration to this proposed rule change and that the proposed language be sent to the Supreme Court of Missouri and that The Missouri Bar work with the Court to every extent possible to get this rule changed as quickly as possible. The motion was approved.
C. Vice-President's Report
Mr. Tom Bender reported that he has been attending a variety of law-related conferences to gain a better understanding of the issues and challenges facing bar associations and the responses and effective practices employed by other bar associations. He commended the hard work and time that the President and President-Elect spend on a day-to-day basis in their leadership roles. He noted that he has been and will continue to be involved in Missouri Bar policy review and the review of activities to ensure that the Bar is getting the most value from every dollar spent, so the Board of Governors are in a position to confidently answer any member’s question as to how their enrollment fees are used, what they are spent on and why those expenditures are made.
D. Treasurer’s Report
Ms. Betsy AuBuchon reported that a run-off election is being held to fill the vacancy for a lawyer member on the Eastern District of the Missouri Appellate Judicial Commission as well as several run-off elections in circuit judicial commissions. She reported that lawyer voting turnout was very strong in the elections and results will be announced on December 9. Ms. AuBuchon also reported that 2018 annual enrollment forms will be sent out soon, and she noted that an additional form will be included this year related to Rule 5.26 related to the appointment by lawyers of a trustee. She expressed the appreciation on behalf of the Supreme Court of Missouri for the close relationship with The Missouri Bar.
E. Executive Director's Report
(1) Media Relations Report
Ms. Sebrina Barrett called attention to the metric reports contained in the meeting materials and encouraged members of the Board of Governors to review it.
(2) James Madison Legacy Project
Ms. Barrett noted that Citizenship Education Director Millie Aulbur provided a memo in the meeting materials regarding the James Madison Legacy Project, a three-year nationwide initiative to increase the effectiveness of teachers of American Government, the achievement of students in this area, and to evaluate the We the People professional development program model. Ms. Barrett called attention to some key points in the memo, noting that the program in Missouri has received $450,000 in grants and has reached 17,000 students during the course of three years. She also noted Missouri teachers have indicated The Missouri Bar is their main source of professional education and they would not receive such professional development opportunities but for The Missouri Bar’s offerings.
(3) Member Benefits and Enrollment Fee Information
Ms. Barrett reported members of the Board of Governors may get questions from constituents during the enrollment fee period. She called attention to the message map on member benefits and the infographic showing efficiencies, as well as how enrollment fees are utilized, which are included in the meeting materials as a resource. She noted that a list of the member benefits is also easily accessible on The Missouri Bar’s website.
(4) Economic Survey
Ms. Barret called attention to the executive summary of the results from the Missouri Bar’s Economic Survey. She noted the survey is conducted every two years. She reported that the full report is online.
(5) Director Spotlights
(a) Lucas Boling, Member Services and CLE Publications
Mr. Lucas Boling provided an overview of the work of the Members Services Department, noting that the overall goal of the department is to help attorneys continue to provide high-quality legal services to their clients. He reported that the department’s three staff members regularly field membership calls and inquiries and connect members to the wide range of resources available. He reported that the resources include member benefits and discounts, practice management information, and dispute resolution programs. He noted in addition to resources such as Solo and Small Firm Conference and lexPort, the department features a lending library, maintains an extensive law practice management online presence and is part of a network of LPM advisors that expands the level of expertise available to members to navigate practice challenges. He noted that the department administers three dispute resolution programs: (1) Fee Dispute Resolution; (2) Complaint Resolution; and (3) Lawyer-to-Lawyer Dispute Resolution. He also reported on the work of the CLE Publications Department which he also manages, noting that this department of two staff members and one independent contractor utilize the expertise of volunteer authors and reviewers to maintain 28 Missouri Bar Guidebooks and 20 comprehensive Missouri Bar Deskbooks.
(b) Farrah Fite, Media Relations Director
Ms. Farrah Fite provided an overview of the work of the Media Relations Department. She reported her team of three staff members focus on reaching Missouri lawyers to help them better serve their clients and reaching the public with the story of how the work of lawyers improves their lives. She reported the department works with the media on a daily basis, helps train Bar officers for interviews and speeches, and manages its own newsroom. She noted the department shares information with members and the public through social media, newsletters, blogs and supports three websites: (1) the main Missouri Bar site (2) a Missouri Bar site for the public, and (3) a site focused on Missouri’s Non-Partisan Court Plan. She further reported the department maintains a partnership with the Missouri Broadcasters Association, which provides a vehicle for The Missouri Bar to share it public service messages via radio and television throughout the state at a 4:1 cost ratio. She noted this year, the relationship translated into Missouri Bar PSAs being broadcast more than 10,000 times in this media. She also reported the department routinely connects reporters with lawyers who have expertise related to news story topics, utilizing committee chairs. She noted she serves as the Bar’s liaison with the Press-Bar Commission, which produces a news reporter’s handbook and a legal glossary of terms for the press and public. She noted this department also coordinates the Mini Law School for the Public; markets juror appreciation week statewide; supports the marketing of National Healthcare Decisions Day activities; works with the YLS in promoting its disaster hotline in times of crisis; markets the Judicial Performance Review findings and supports the Free Legal Answers online assistance for low-income citizens. She also reported support for special projects which include educating the public regarding the Non-Partisan Court Plan, liaison for the Board of Governors Strategic Planning Committee and working with Dana Tippin Cutler during her term as president to implement the Courageous Collaboration program.
(6) Print Shop Update
Ms. Barrett shared slides of the renovation of the print shop, which is being remodeled to provide office space, an additional conference area, and a work area. She reported that the renovation is on track to be completed around Thanksgiving.
(7) Report from ABA Diversity Delegate Hon. Nicole Colbert-Botchway
Ms. Barrett called attention to a written report from Hon. Nicole Colbert-Botchway which was included in board materials and provides an update on the work of the board-appointed Missouri Bar delegate to the ABA.
(8) 2017 Year-End Report
Ms. Barrett called attention to the 2017 Year-End Report also provided in the meeting materials.
9. Other Business:
Mr. Cole reported that on a recent trip to the Springfield area, he had the opportunity to visit with a good friend of the board and member of the Bar, Amy Squibb, and shared a photo of Amy and the late-Wallace Squibb’s sons, Wallace Jr. and Will.
Mr. Morry Cole, the Board of Governors and staff present at this meeting offered a congratulatory message transmitted via Facebook live to the investiture ceremony of Willie Epps as a U.S. Federal Magistrate Judge. The investiture ceremony was taking place at Lincoln University.
To conclude the meeting, the Board of Governors viewed the public service announcement that will be aired this year, which focuses on the value of the Non-Partisan Court Plan.
There being no further business, the meeting was adjourned.
Sebrina A. Barrett, Secretary