Board Minutes

Board Minutes – November 18, 2011

November 18, 2011 – 1:30 p.m.
Jefferson City Capitol Plaza Hotel, Lincoln Room

Members present:
Lynn Whaley Vogel, President
Patrick B. Starke, President-Elect
P. John Brady, Vice-President
Keith A. Birkes, Secretary

Bevy A. Beimdiek
Thomas V. Bender
Erik Bergmanis
Suzanne B. Bradley
Robert J. Buckley
Dennis J. Capriglione
Mark W. Comley
Hon. Charles Curless
Dana Tippin Cutler
Joel R. Elmer
Brian Francka
Genevieve M. Frank
Wendy Garrison
John W. Grimm
James H. Guest
Richard F. Halliburton
Hon. James F. Kanatzar
Robert S. Kenney
Hon. John F. Kintz
Mark H. Levison
Neil F. Maune, Jr.
Lauren Tucker McCubbin
Mira Mdivani
Max E. Mitchell
Nancy R. Mogab
Hon. Mark H. Neill
Douglass F. Noland
Joseph P. Rice, III
Reuben Shelton
Walter R. Simpson
Antwaun L. Smith
Wallace Squibb
W. Douglas Thomson
Raymond E. Williams
Eric J. Wulff

Present by telephone:
Edward J. Hershewe
J. B. Lasater

Members absent:
Hon. Richard Bresnahan
Carol Chazen Friedman
Vincent F. Igoe, Jr.
John S. Johnston
Brett W. Roubal

Also present:
Millie Aulbur
Jennifer Gille Bacon
Sebrina Barrett
Catherine Barrie
Lucas Boling
Jim Brady
Kent Hopper
Chris Janku
Jill Katz
Jason Lamb
Norman Lampton
Dan Lehmen
Gwenda Renee Robinson
Linda Oligschlaeger
Delores Shepherd
Alan Stewart
Larry Swall
Gary Toohey
Joe Whisler
Eric Wilson

1. Minutes:

It was moved and seconded that the minutes of the meeting of the Board of Governors of September 21, 2011, and the meetings of the Executive Committee of September 21 and October 28 be approved. The motion was approved.

2. Legislation:

Ms. Catherine Barrie reported that a list of the previously approved Bar-drafted legislation and The Missouri Bar scope statement had been provided in the Board materials. She also reported that three proposed Bar-drafted legislative proposals will be presented - one from The Missouri Bar Criminal Code Committee and two from the Family Law Section. She also reported that there would be a presentation regarding proposed Missouri Bar Adoption Practice Guidelines from the Special Committee on Adoption.

A. Criminal Code Revision

Mr. Jason Lamb, co-chair of the Criminal Law Committee, gave a brief overview of proposed legislation to revise Chapters 556-558, the criminal code in Missouri. He explained that the Criminal Code Subcommittee conducted a comprehensive review of the code over a four-year period with the goal of coordinating the structure and content of the criminal statutes. He noted that all of the changes proposed in the legislation were arrived at by consensus among a committee made up of prosecutors and criminal defense attorneys. Mr. Lamb reported that the changes included updating language, addressing duplicative sections, and restructuring sections of the current code. He reported that the committee also addressed gaps in sentencing identified during the review by proposing an additional class of felonies along with a restructuring within the felony classes as part of it revision. 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 support the proposed legislation. The motion was approved by two-thirds of the members present and voting.

B. Equitable Parenting Proposal

Mr. Alan Stewart, chair of the Family Law Section, together with Larry Swall, reported on proposed legislation that would create a new section under Chapter 452 allowing a court to assess whether action taken by a biological, otherwise fit parent, to sever the ties between a child and a non-biological parent figure who, through a relationship with the biological parent had established a strong parent/child bond, causes emotional and psychologically effects detrimental for the child. In such cases, the proposed legislation would allow the court to order visitation or custody rights for the non-biological parent figure. Mr. Swall noted that a form of this legislation was previously introduced during the September, 2011 Board meeting. He reported that changes were made and incorporated into the currently proposed legislation based on comments made when the legislation was originally introduced and from comments received from attorneys subsequent to that September meeting, including limits to the class of persons eligible to seek relief under the statute. He answered questions on public policy issues, the inclusion in Chapter 452 rather than guardianship statutes and the likely divisiveness of this proposal within the bar. 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. Three members voted no and wished to be recorded. They were Mr. Brady, Mr. Maune and Mr. Wulff. It was moved and seconded that the proposal be approved for filing. A subsequent motion was made to table the motion. The motion to table failed. The motion to approve the proposal for filing failed to receive the needed approval by two-thirds of the members present and voting.

C. Higher Education Parental Support Proposal

Mr. Alan Stewart reported on proposed legislation that would create a cause of action for the allocation of costs associated with higher education/vocational training beyond high school separate and/or independent from the determination of child support. The legislation would provide standards for determining eligibility, as well as the extent and duration of post-majority educational support and establish factors to consider in establishing the amount and apportionment of costs between parents and/or children. 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. Ms. Lynn Whaley Vogel reported that this proposed legislation was received after the deadline for legislative proposals, and as a result, has not been circulated through the legislative review committees of The Missouri Bar for comment. She indicated that the Executive Committee recommends that the proposed legislation be tabled, distributed for comment, and taken up again at the February meeting of the Board of Governors. It was moved and seconded to table the proposed legislation as recommended by the Executive Committee. The motion was approved by two-thirds of the members present and voting.

D. Special Committee on Termination of Parental Rights in Adoption Legislation

Mr. Stewart reported that the Special Committee on Termination of Parental Rights in Adoption had developed proposed legislation that would amend 211.444 RSMo, 453.065 RSMo, and 453.080 RSMo, allowing for parents to enter into post-adoption agreements with natural parents to allow contact with and information about the adoptee and allow the courts to enforce such agreements. Mr. Stewart indicated that because this proposal has not been circulated to the legislative review committee process, it would be withdrawn and proposed after such comment review distribution has taken place.

E. Report on the Special Committee on Termination of Parental Rights in Adoption

Mr. Larry Swall, chair of The Missouri Bar Special Committee on Termination of Parental Rights in Adoption, provided a report on the work of the committee. He reported that the committee was formed in response to a high profile case In re the Adoption of C.M.B.R. He reported that the committee met on several occasions and identified through its work related to In re the Adoption of C.M.B.R. a number of issues related not only to this specific type of case involving immigration issues, but to general adoption procedures in Missouri. He noted that the committee addressed issues related to right to counsel, the need to educate lawyers about representing parents in termination of parental rights in adoption cases, addressing consistency in procedure, collaborative education with juvenile officers (many of whom are not lawyers), the availability of foreign language interpreters, issues related to access to courts and access to information available through an Internet-based clearinghouse resource for use by lawyers. He also indicated that the committee identified issues related to the Putative Fathers Registry in these cases and post-adoption issues that the Special Committee has addressed in the proposed legislation that was previously discussed and withdrawn in order to circulate for comment. It was moved and seconded that the Board receive the report of the Special Committee on Termination of Parental Rights in Adoption. The motion was approved.

F. Draft Missouri Bar Adoption Practice Guidelines

Jill Katz, chair of the Juvenile Law Committee, also reported that the committee developed proposed Missouri Bar Adoption Practice Guidelines designed for use by judges, lawyers and others who are involved in matters brought under Chapter 453 and in Chapter 453 actions with allegations pled under Chapter 211. She noted that this area is very technical, so the guidelines are designed to help practitioners by highlighting what must be done in these matters including references to appropriate statutes. Ms. Katz requested that the Board adopt these guidelines and that The Missouri Bar publish the guidelines for judges and lawyers in Missouri. It was moved and seconded to adopt the guidelines and publish them to members of the bar. The motion was approved.

3. Committee Reports:

A. Supreme Court Advisory Committee

Ms. Jennifer Gille Bacon, chair of the Supreme Court Advisory Committee, reported on proposed changes to the Model Rules for Client Trust Account Records and recommendations from the Advisory Committee’s Task Force on Aging Attorneys.

(1) Adoption of Model Rules for Client Trust Accounts in Missouri

Ms. Bacon reported that the Advisory Committee of the Supreme Court of Missouri is planning to recommend that the Supreme Court of Missouri adopt the ABA Model Rules for Client Trust Account Records, with appropriate Missouri modifications made utilizing the guidance of OCDC, Missouri’s Ethics Counsel and the counsel for the Supreme Court of Missouri. She reported that the adoption of these rules are needed based on the experience OCDC has had with cases involving the overdraft reporting rule. She noted that OCDC has found a fundamental lack of knowledge and understanding of the recordkeeping aspects of managing a trust account to be a common factor in overdraft situations. The committee has also found that the current Rule 1.15 is long and complex and does not provide a clear set of guidelines to assist practitioners regarding these issues. She reported that prior to making the recommendation to the Supreme Court of Missouri to adopt a Missouri version of the Model Rules, the Advisory Committee wanted to receive comments and feedback from the Board of Governors and to ask the Board to approve the concept being recommended to the Court. She indicated that it is anticipated that the adoption of the Model Rules by the Court would include a revision of Rule 1.15, breaking the current rule into segments so it provides clear guidance to practitioners. It was moved and seconded to support the concept outlined and a recommendation to the Supreme Court of Missouri to adopt the ABA Model rules as described. The motion was approved.

(2) Report from Advisory Committee Regarding Aging of the Bar

Ms. Bacon reported that the Advisory Committee of the Supreme Court of Missouri appointed a task force to study and make recommendations regarding steps that could be taken to address issues which are likely to increase as a result of the aging of the lawyer population, noting that nearly one-third of the Bar’s membership is age 55 or older. She reported that some of the recommendations in the report would be implemented under the authority of the Court, while other recommendations could be implemented by The Missouri Bar. She explained that significant problems result when a lawyer dies without a succession plan in place. She noted that the Supreme Court of Missouri has taken steps to address this issue by adopting one of the recommendations of the Task Force and making modifications to Rule 5.26 regarding the appointment of a trustee in the event of a lawyer’s death or disability. Some of the proposed changes include the appointment of a trustee, OCDC guidance and oversight, and some payment for trustee services.

In addition, the Advisory Committee will be asking the Court and Bar to consider implementing other recommendations which include:

(a) Expanding the scope and authority of the Rule 16 Intervention Committee and adequate staffing of MOLAP to support expansion;
(b) Requiring lawyers to check a box on the annual enrollment form indicating whether they have a succession plan;
(c) Expanding a MOLAP resource library and website similar to the Law Practice Management webpage;
(d) Forming a Senior Lawyers Committee to assist implementation;
(e) Providing CLE to lawyers to educate them on these issues.

It was moved and seconded to adopt the report of the Advisory Committee. The motion was approved.

B. ABA House of Delegates

Mr. Joe Whisler reported that as state membership chair for the ABA, he is meeting with the boards of the major bar associations in Missouri to discuss and encourage lawyer involvement with the American Bar Association. He addressed three main issues that he hears regarding membership in the ABA. The first issue was the cost of membership. He noted that the ABA has taken action to make membership more affordable specifically for solo practitioners, reducing their dues rate, and he noted that some consideration is being given to adjusting rates for small firms as well. He also addressed a prevalent impression that the ABA is dominated by large firms. He explained that most sections actually have a broader representation. He discussed often cited criticism from lawyers that the ABA takes positions on broad issues that attorneys sometimes consider irrelevant or outside the scope of this professional association. Mr. Whisler went on to explain that Missouri lawyers who are members of the ABA receive multiple reports from him each year with the next one scheduled for February, following the ABA meeting. He encouraged members of the Board and of the bar to consider membership in the national association.

C. Client Security Fund Report

Mr. Chris Janku reported that the Client Security Fund Committee is recommending the payment of 31 claims totaling $224,946.78 and the denial of 19 claims. He noted that nine claims have been deferred pending receipt of additional information. The Client Security Fund Committee requested that the Board of Governors approve the recommendations for payment and denial and authorize the Committee to submit recommendations on the deferred claims to the Board of Governors for action at its February, 2012 meeting. He reported that the balance of the Fund as of October 31 was $395, 070.01 and the total of claims recommended for payment through November 8 totals $272,269.55. The process of subrogation was discussed including the possibility of hiring private counsel to pursue some claims. It was moved and seconded to approve the Client Security Fund Committee report and the recommendation for the payment, deferral and denial of claims, including authority to bring recommendations on the deferred claims to the Board of Governors at its February, 2012 meeting. The motion was approved. It was also moved and seconded for the Client Security Fund Committee to consider the possibility of employing outside counsel to pursue subrogation claims and to report their recommendation back to the Board. A friendly amendment was added to the motion for the committee to also consider other means and options for recouping funds expended. The amended motion was accepted and seconded. The amended motion was approved.

D. Commercial Law Committee

Mr. Norm Lampton reported that the Commercial Law Committee has developed a form to address issues related to disposition of cases within the state under Rule 17 when a party is thought to have filed for bankruptcy in federal court. Mr. Lampton reported that the Commercial Law Committee requests that the draft forms be sent to either the Missouri Bar Civil Practice and Procedure Committee or the Civil Rules Committee of the Supreme Court of Missouri for review and any additional action related to the drafting of proposed civil rules that may be needed. It was moved and seconded to refer the form to The Missouri Bar Civil Practice and Procedure Committee. The motion was approved.

E. Young Lawyers Section

Ms. Lauren Tucker McCubbin reported on YLS projects and activities. She reported that the YLS Small Claims Court Handbook has been revised to include changes in the law as to the new jurisdictional limit related to the amounts of a claim and also to reflect an increased cost related to a certified mailing. She requested approval from the Board to distribute the newly revised version. It was moved and seconded to approve distribution of the handbook. The motion was approved. Ms. McCubbin also reported that a revised New Lawyer Survival Guide is almost finished. She indicated that the YLS will seek approval from the Board for its electronic distribution to recently admitted lawyers when the guide is ready. She also reported that the YLS Council will be hosting a tailgate at the November 19 MU football game and extended an invitation to all Board members to attend.

F. Media Law Committee

Ms. Suzanne Bradley reported that the Special Committee on Cameras in the Courtroom will begin a review of the rules on cameras in Missouri courts. She informed the Board that the review was requested by the Missouri Press-Bar Commission and then Chief Justice William Ray Price, Jr. She noted that the Commission plans to ask lawyers and judges for their input as part of the review process, and she invited members of the Board to express any of their thoughts or concerns to the Special Committee. She further reported that the Special Committee will be meeting to develop a process and timeline for the review of the rules.

4. Appointments:
A. November Appointments
(1) Client Security Fund Committee
Mr. Keith Birkes reported that the Executive Committee recommends the appointment of Shira Truitt to fill the vacancy on this committee resulting from the expiration of Matt Devoti’s term. It was moved and seconded to appoint Ms. Truitt. The motion was approved.

(2) Missouri Commission on Retirement, Removal and Discipline
The terms of Sheldon Stock and Jennifer Gille Bacon are expiring and they are not eligible for reappointment. Ms. Lynn Whaley Vogel took nominations from the floor for two vacancies on this Commission. The following persons were nominated:
Art Margolis
H.A. “Skip” Walther
Joe B. Whisler

Written ballots were circulated to members of the Board and the results were tabulated. Messrs. Art Margolis and H. A. “Skip” Walther received the most votes and were appointed.
(3) Lawyer-to-Lawyer Dispute Resolution Committee

The first terms of Theresa L. F. Levings, Keith Cutler, Ronald Willenbrock, Janet Thompson and the Honorable Gary Lynch are expiring. All are eligible for reappointment. It was moved and seconded to reappoint all five members to this committee. The motion was approved.
(4) Missouri Press-Bar Commission
Honorable Jerry Venters’ term on the Commission is expiring and he is eligible for reappointment. It was moved and seconded to reappoint Judge Venters to the Commission. The motion was approved.
(5) IOLTA Commission

John Joines’ term as The Missouri Bar’s non-lawyer appointment is expiring and he is not eligible for reappointment. Lynn Hostetler and Kevin Calloway were nominated. It was reported that Mr. Calloway would need to withdraw from consideration. It was moved and seconded to nominate and approve Lynn Hostetler. The motion was approved.

(6) Complaint Resolution

C. J. Larkin’s and Kathleen Bird’s terms are expiring and they are eligible for reappointment. Allen Garner’s second term is expiring and he is not eligible for reappointment. It was moved and seconded to reappoint C. J. Larkin and Kathleen Bird and to nominate Albert Crump for the vacancy created by the expiration of Mr. Garner’s term. The motion was approved.

(7) Judicial Performance Evaluation Committees

Ms. Lynn Ann Vogel reported that the appointments to each of the seven judicial performance evaluation committees (one for appellate judges and one for each of the six circuits covered by the Missouri Non-Partisan Court Plan) must be completed by the end of the year. She reported that due to the tight time constraints and large number of appointments required, the Executive Committee is requesting the authority to make final appointments in consultation with individual board members in the pertinent geographic areas involved. Ms. Vogel indicated that a suggestion to avoid impropriety and/or any appearance of impropriety by not nominating anyone seeking judicial office to these committees would be taken under consideration. It was moved and seconded to grant the Executive Committee the authority requested. The motion was approved.

B. January Appointments

There are no January appointments.

6. Finances:

Mr. Erik Bergmanis reported on the end of the year financial status and a draft budget for 2012. He reported the Finance Committee has reviewed the proposed budget thoroughly and is recommending its approval to the board. He reported that the 2011 budget should come in approximately $500,000 under budget, noting that this figure includes about $290,000 in public information funding that was in the budget in case the need arises to defend the non-partisan court plan. He reported that the end of the year budget status should leave approximately $3.9 million in reserves going into 2012, which would possibly delay the need for a dues increase until 2013.

Mr. Bergmanis reported that the 2012 budget anticipates a flat stream of revenue and a slight increase of 1.4 percent in expenditures, which he contrasted with an expected 3.5 percent inflation rate. He noted that the budget also included some additional anticipated expenses related to the transition of staff expected in 2012.

Mr. Pat Starke also gave a report on the results of the Special Committee Reviewing MoBarCLE. He reported on the overall status of the challenges related to continuing legal education, noting that CLE programming is breaking even, and explaining that the main challenges pertain to market changes affecting publications – particularly the deskbooks – which are operating at a deficit. He discussed the effects of the changing publication market, including competition from widely available access to free legal research electronically. He also explained the time, effort and related significant cost required to develop deskbook publications, ensuring accuracy before distributing under The Missouri Bar name. He commended the staff efforts to respond to the changing market, including developing and testing the demand for MoBarCLE guidebooks. He reported that the committee has three recommendations for board action. They are:

(1) separate the budgets of the MoBarCLE programming and publications departments;
(2) maintain a goal of both departments generally breaking even;
(3) require a departmental review of publications with staff deciding which deskbooks publications to discontinue, using value to the members and the financial integrity of the Bar as guidelines in the decision-making process.

Mr. Keith Birkes also reported that the current draft of the 2012 budget includes publication expenditures of approximately $150,000 that would be removed from the budget should the board approve the recommendations of the Special Committee.

It was moved and seconded to approve the recommendations of the Special Committee. The motion was approved.
The board went into executive session to discuss confidential budget matters related to personnel and salaries. At the conclusion of the executive session, it was moved and seconded to approve the 2012 budget as presented, and Mr. Birkes was authorized to receive a 3% salary increase and the continuation of his normal fringe benefits. The motion was approved.

7. Officers’ Reports:

A. President’s Report

Ms. Lynn Whaley Vogel reported on the following:

(1) Pro Hac Vice

Ms. Vogel reported that the Supreme Court of Missouri adopted the Board’s proposed changes to Missouri’s Pro Hac Vice Rule as recommended. She noted that work is continuing on the development of proposed amendments to Rule 9.03, related to the role of the in-state lawyer in pro hac vice matters.

(2) Missouri Bar President Speaking Engagements & Social Media Usage

Ms. Vogel reported on upcoming speaking engagements at bar associations across the state. She noted her interest in scheduling additional opportunities to attend and speak at bar associations including the northeast, northwest and Jasper County, as well as other areas of the state. She also reported on the Missouri Bar President’s Facebook and Twitter social media activities.

(3) Missouri Bar Institutional Ads

The three Missouri Bar institutional ads were previewed by the board. The 2012 ads focus on: (1) disaster preparedness, (2) the non-partisan court system and (3) the
valuable assistance lawyers can provide for those engaged in business.

(4) February Board of Governors Meeting

Ms. Vogel reported that the February Board Meeting is scheduled for the Ameristar Hotel in St. Charles. She offered a brief overview of the amenities and the scheduled activities for the meeting, including a Thursday night dinner at the host hotel and a Friday night dinner at the Bellerive Country Club. She reported that more information would be sent out soon.

(5) Board Liaison Reports

Ms. Vogel reported on efforts to enhance and clarify the role of board liaisons to Missouri Bar committees, noting that it is especially important for liaisons to help enhance communication between committees and the board. She noted that less emphasis is placed on expertise in the substantive area of law of the committee. She reported that board liaisons are asked to contact committee chairs regarding their activities. She also reported that a procedure will be implemented where 10-12 board liaisons will be assigned to provide a brief report of committee activities at board meetings. She distributed a list of assigned reports for upcoming board meetings. She also reported that additional efforts have been taken to improve communication with committee leadership, including a major revision of the committee chair’s manual and a board orientation session at the Annual Meeting.

(6) Missouri Bar Speaker’s Bureau Materials

Ms. Vogel reported that she plans to develop some new materials for the speaker’s bureau. She indicated that this is necessary because of recent requests from locations where presentations were made last year on the subject of the Non- Partisan Court Plan. Ms. Vogel reported that her intention is to develop materials about adequate funding for the judiciary and she indicated that any assistance from board members on this topic would be welcome.

B. President-Elect’s Report

Mr. Patrick Starke reported that he plans to bring a number of issues generated by the Vision Committee before the Board for discussion at the February meeting. These include electronic voting for Board of Governors elections, whether new officers should be elected by a vote of the outgoing or incoming board members at each Annual Meeting, and ideas related to development of a program currently done in Oklahoma to provide a legal interface with National Guard members and veterans returning from Iraq.

C. Vice-President’s Report

No report.

D. Deputy Executive Director’s Report

Ms. Sebrina Barrett briefly commented on her experience as Deputy Executive Director of The Missouri Bar, expressing her appreciation to the Board and commending the quality and excellence of the Bar staff. She provided a brief report on the new Missouri Bar website, noting the challenges related to creating a site that responds to diverse users, including lawyers, judges, teachers and the general public. She provided some examples of issues that have been identified following the launch of the website, including some member use of older incompatible browsers and issues related to Fastcase links on the new site. She reported that efforts continue to help visitors address any problems they may be experiencing. She also reported that a staff committee has been working with the IT Department to incorporate an ecommerce solution that is integrated with the website, the IMIS database and accounting software. She reported that efforts are continuing to address the transition of a number of key staff directors, including working with the departing directors to ensure a smooth transition. She reported that she has been traveling around Missouri with Missouri Bar President Vogel, visiting bar associations and members and encouraged board members to join them when they are making presentations in their area.

E. Executive Director’s Report

Mr. Birkes reported that information will be sent to Board members about the meeting in February and the Spring Committee Meetings in May.

There being no further business, the meeting was adjourned.

Respectfully submitted,

Keith A. Birkes, Secretary