Board Minutes

November 18, 2016 -- 1:30 PM
Jefferson City Capitol Plaza Hotel

Members present:

Dana Tippin Cutler, President

Raymond E. Williams, Vice-President

Erik A. Bergmanis, Immediate Past President

Sebrina A. Barrett, Secretary


Thomas V. Bender

Amy Bender-Levy

Robert J. Buckley

Rod T. Chapel, Jr.

Morry S. Cole

Michael J. Colona

Mark W. Comley

Athena M. Dickson

Deborah K. Dodge

Shelly Dreyer

J. Brent Dulle

Joel R. Elmer

Genevieve M. Frank

John W. Grimm

James H. Guest

John R. Gunn

Robert E. Jones

Amanda Ketchum

J. B. Lasater

Andrew Lyskowski

James McConnell

Lauren Tucker McCubbin

Mira Mdivani

Joseph A. Morrey

Douglass F. Noland

Jason Paulsmeyer

John E. Price

Joseph P. Rice, III

Tricia M. Scaglia

Jason Paulsmeyer

John E. Price

Jason Rew

Joseph P. Rice, III

Tricia M. Scaglia

Deanna K. Scott

Hon. W. Douglas Thomson

Eric J. Wulff


Members absent:
Nancy R. Mogab

Hon. Charles Curless

Jerri J. Zhang

Joan M. Swartz


Present by telephone:

W. Perry Brandt

Jennifer E. Matthew

Karen McCarthy

Max E. Mitchell

Jason Rew

Hon. Jason M. Sengheiser


Also present:
Betsy AuBuchon

Millie Aulbur

Lucas Boling

Anne Chambers

Danelle Cord

Farrah Fite

Kent Hopper

Chris Janku

Eric Jennings

Jeff Markway

Cindy Neagle

Delores Shepherd

Robert Stoeckl

Bill Thompson

Gary Toohey

Eric Wilson





1.            Minutes
Ms. Dana Tippin Cutler asked if there were any changes needed to the minutes and hearing none, it was moved and seconded to approve the minutes of the Board of Governors meeting of September 21, 2016 and the Executive Committee meetings of September 21, 2016 and October 21, 2016. The motion was approved.

2.            Officer Rotation:

Ms. Dana Tippin Cutler reported that she had received a letter of resignation from President-Elect Nancy Mogab for her seat on the Board of Governors and the office of President-Elect of The Missouri Bar. Ms. Cutler stated that Ms. Mogab’s letter would be considered a motion and would not require a second. President-Elect Mogab’s resignation was approved by the Board of Governors. 

Ms. Tippin Cutler further reported that a notice had been sent to members of the Board of Governors, asking those Board members representing St. Louis City and St. Louis County to communicate their interest in filling the resulting vacancy created in the rotation of Board officers and to communicate such interest by 5:00 p.m. on Wednesday, Nov. 16, 2016. Ms. Tippin Cutler indicated that Governors Morry Cole and Eric Wulff had expressed their willingness to fill the vacancy in the office of President-Elect. She reported that questions had been raised with respect to Mr. Wulff’s eligibility because he does not represent a St. Louis City or St. Louis County district as defined under the existing rules. She further reported on the results of historical research conducted regarding the rotation of officers and geographic representation on The Missouri Bar Board of Governors. The research included the following: (1) Board precedent in the form of a motion adopted in 1944 that the offices rotate among Kansas City, St. Louis and the remainder of the state, as geographical units (Board Minutes, September 30, 1944, pp 4-5); (2) Resolution No. 2, adopted by the Board of Governors in 1978, which recommended to the Supreme Court of Missouri an amendment to Rule 7.02 formalizing the rotation of officers by geographic unit (Board Minutes, July 21 & 22, 1978); and (3) Board consideration, without further action, of a proposal in 2015 that the rotation of officers be based on the three appellate districts (Board Minutes, March 5, 2015, pg. 11). Ms. Tippin Cutler reported that, according to the rules previously adopted by the Board governing leadership rotation and geographic representation, Mr. Wulff was not eligible for election pursuant to the geographical rotation established by the vote of prior iterations of the Board. She further indicated that under these circumstances, two options were available to the Board of Governors: (1) entertain a motion to suspend the current rules governing leadership rotation or (2) entertain a motion to elect the one eligible candidate. It was moved and seconded to elect Morry Cole to fill the vacancy in the leadership rotation as President-Elect. The motion was approved. One no vote was recorded.

Mr. Wulff suggested that the Board of Governors consider processes and/or best practices for addressing unusual or unanticipated matters that the Board may be called upon to react to in the future.


3.            Finances:

    A.         Financial Report

Judge Thomson provided the financial report. He reported that the year-to-date status is on target, noting that as of September 30 (or 75 percent of the budget year) expenditures are at approximately 61 percent of budget. He reported that CLE Programs have seen a decrease in receipts and an increase in expenses with a net decrease of about $280,000 over last year, but still running in the black at about $236,000. He reported that the overall net for CLE Programs is down as compared to the same period in 2015. He reported that 

CLE Publications receipts and disbursements are down for 2016, noting that CLE Publications is currently registering a net loss of approximately $40,000 for the year. He explained that about $400,000 in fixed costs are applied against this area.

Judge Thomson further reported that this is the first year that the printing is not done in-house and he noted that budget estimates related to the transition to a commercial printing approach have been very accurate. He reported that printing costs currently stand at approximately 72 percent of the budget as of September 30, 2016.

He reported that The Missouri Bar hosted the Southern Conference of Bar Presidents (SCBP) in October and that this conference was supported completely by registration fees and sponsorship. He noted that as holding with tradition, any excess in receipts over expenses for the 2016 conference will be forwarded to next year’s state bar association host for the SCBP, noting that the 2015 host bar association had transferred excess funds from that conference to assist with the support of this year’s The Missouri Bar hosted SCBP.

Judge Thomson provided a report on assets, noting that The Missouri Bar’s asset position is  performing well. He reported that current assets in reserve total approximately $11.4 million, compared to $9.6 million at the same time period last year. He reported that The Missouri Bar’s investments in bonds and securities total $8 million as compared to $5 million last year. 

    B.         Executive Session

It was moved and seconded for the Board of Governors to go into Executive Session for the 2017 budget. The motion was approved.

    C.         2017 Budget

Ms. Dana Tippin Cutler reported that the proposed 2017 budget has been submitted by recommendation, so it does not require a second. She asked for approval of the 2017 budget as recommended. The 2017 budget was approved. 

    D.         2016 Pro Hac Vice Allocation

Judge Thomson reported that the share of the 2016 Pro Hac Vice fees available for distribution at the discretion of The Missouri Bar Board of Governors is expected to total about $90,000. He reported that the Finance Committee recommends that 100 percent of these funds be held in reserve to fund The Missouri Bar’s citizenship education campaign on the Missouri Non-Partisan Court Plan, noting that the 2016 share added to the current balance of approximately $180,000 will provide approximately $270,000 for the citizenship  education purposes in addition to the amount allocated in the 2017 budget. The first $132,700 of Pro Hac Vice fees collected each year are distributed to the four Missouri Legal Services entities. Pro Hac Vice fees collected in excess of $132,700 are distributed 80% to Legal Services entities and the remaining 20% can be distributed at the discretion of

The Missouri Bar Board of Governors. It was moved and seconded to approve the Finance Committee recommendation as presented. The motion was approved.


4.            Appointments:   

    A.            November Appointments   

                (1)          Legal Services of Southern Missouri Board Vacancy

Ms. Tricia Scaglia reported that a vacancy has occurred on the board of Legal Services of Southern Missouri (LSSM) due to the resignation of Mr. Fred Hall. She reported that the Board of Governors has traditionally fulfilled the Legal Services Corporation requirement that Legal Services of Southern Missouri appointments are approved by a general bar association. It was moved and seconded to approve the appointment of retired judge, Hon. Sue Chrisman, to fill this vacancy, as recommended. The motion was approved.                     

                (2)          Client Security Fund Committee               

Ms. Scaglia reported that Ms. Shira Truitt’s first five-year term on the Client Security Fund Committee is expiring and she is eligible for reappointment. It was moved and seconded to reappoint Ms. Truitt for a second term. The motion was approved.     

                (3)          Complaint Resolution Committee    

Ms. Scaglia reported that Mr. Greg Dorshorst’s second four-year term on the Complaint Resolution Committee is expiring and he is not eligible for reappointment and that Ms. Katherine Moore is recommended to fill the vacancy. It was moved and seconded to approve the appointment of Ms. Moore. The motion was approved.


5.            Legislation:           

Mr. Eric Jennings called attention to the legislative materials in the meeting packet, including a list of current lawyer-legislators, a historical review of the number of lawyer-legislators in the General Assembly (1891-2017), and a roster of General Assembly members, with leadership positions, legislative districts, and a break-down by Board of Governors districts.  A survey will be developed to allow Board members to share information about existing contacts or relationships with current legislators. 

The 2017 General Assembly includes twenty-four lawyer-legislators:  two senators (one Democrat and one Republican) and twenty-two House members.  This number includes nine new lawyer-legislators, a slight increase from recent years, but not significantly different from the average for the last twenty years.  However, this will be the lowest number of lawyer-legislators in the Missouri Senate since 1891.  The Senate Judiciary Committee will have a majority of non-attorneys, but the House Judiciary and Civil and Criminal Procedures Committees will continue to have a majority of attorneys as members.    

According to Mr. Jennings, the state is expected to face a budget shortfall of at least $200 to $300 million.  Therefore, one of the first challenges for the governor and the General Assembly will be closing this anticipated gap. 

He further noted that, in light of single-party control of the governor’s office and supermajorities in the General Assembly, acquiring a sufficient number of votes on bills to later override a gubernatorial veto will no longer be a significant factor.  With the governor’s support on a bill, a simple majority will now be sufficient.

Next week, the Government Relations Department will resume its regular e-mail updates to the Board of Governors on legislative actions.

Mr. Wilson reported that pre-filing of bills in the General Assembly will begin on December 1st and encouraged each member of the Board of Governors to sign up to participate on a Legislative Review Committee. He reminded Board members about the importance of having a wide range of attorneys reviewing legislation, particularly those with expertise in a particular practice area. 

Dana Tippin Cutler reported that efforts were underway to reach out to Governor-elect Greitens and the members of the General Assembly, communicating to them the willingness of The Missouri Bar to be a nonpartisan resource.  She encouraged Board members to reach out to elected officials as well on an individual basis.  Both Mr. Wilson and Mr. Jennings encouraged Board members to share with the Government Relations Department any information, positive and negative, they might learn relating to legislative matters.


6.            Member Benefits:

Mr. Ray Williams reported on 12 new member benefit/program recommendations from the Special Committee to Assist Lawyers in a Changing Economy. He provided a brief explanation about the different types of benefit/program offerings often available to The Missouri Bar including affinity programs, direct discounts to members as well as royalty programs that The Missouri Bar negotiates to receive in the form financial sponsorships and/or scholarships to ensure that the funds directly benefit members by reducing cost incurred and increasing access to Missouri Bar conferences. He highlighted several of the member benefit/program opportunities that are available and under consideration and directed attention to a packet containing detailed information on 12 specific member benefits/programs that the Special Committee to Assist Lawyers in a Changing Economy recommends for approval. He requested authorization for the Executive Director to move forward in negotiating and signing agreements on the 12 opportunities recommended by the committee. It was moved and seconded to authorize the Executive Director to negotiate and enter into agreements for member benefit discounts and programs with the 12 companies listed in the report. The motion was approved.


7.            Committee Reports:

    A.                  Client Security Fund

Mr. Chris Janku reported that the Client Security Fund Committee met in October to consider claims and the Committee recommends the payment of 22 claims for a total of $96,615.75, the denial of 11 claims and the deferral of 12 claims. He further reported that the 2016 budget appropriated $275,000 to the Fund and the balance as of September 30 was $440,390.63. Mr. Janku reported that the Client Security Fund Committee requests approval for the recommended payments and denials and that the

Board of Governors authorize the Committee to submit a recommendation on the deferred claims before the November 2017 meeting of the Board. It was moved to approve the recommendations as stated. The motion was approved.

    B.                  Task Force on Complex Litigation

Mr. Erik Bergmanis reported that the Task Force on Complex Litigation, which has been studying ways to improve the handling of these types of cases within the state, has issued its interim report. He noted that he met with the Supreme Court of Missouri and they have encouraged the Task Force to move forward. He reported that a final report is expected to be completed and submitted to the Supreme Court of Missouri in approximately six months.  He also noted that another group is doing similar work that focuses on how to handle smaller litigation cases more expeditiously. He noted that the Supreme Court of Missouri indicated that they would review the reports from both groups.

    C.            Sunset of Task Force on Lawyers Helping Lawyers

Ms. Dana Tippin Cutler reported that the Task Force on Lawyers Helping Lawyers had completed its study and submitted its final report in 2015 with recommendations to address serious issues surrounding mental health and suicide within Missouri’s legal profession. She explained that traditionally the Board of Governors would sunset the Task Force after receipt of the final report and turn the continued work over to the appropriate permanent committee associated with a particular area. However, she explained the sunset action for this Task Force was delayed because its Task Force leadership had been invited and were obligated to speak at a number of venues including the Judicial College as well as participate in a number of other activities and engagements on dates that followed the submission of the report. As a result, the Task Force on Lawyers Helping Lawyers remained active until these obligations were fulfilled. She noted that there are no additional pending obligations. It was moved and seconded to sunset the Task Force on Lawyers Helping Lawyers. The motion was approved. 

    D.            Board Assessment Committee

Mr. Rod Chapel reported that the Board Assessment Committee has developed a pilot process for evaluating a portion of the open enrollment committees annually.  He noted that this process will focus on quantitative and qualitative information collected on each committee under review with the goal of providing the members of the Board Assessment Committee and Division Chairs with a broad range of information for use in evaluating each committee’s relevance and value to its members. He noted that as part the quantitative component, the Board Assessment Committee identified weighted priorities associated with each of the seven areas of open enrollment committee scopes for use as one tool in the analysis performed by the Board Assessment Committee and Division Chairs. He reported that the Board Assessment Committee is asking the Board of Governors to endorse the weighted levels as designated. It was moved and seconded to approve the weighted levels associated with the open enrollment committee scopes as part of the evaluation process developed by the Board Assessment Committee. The motion was approved.

    E.            Strategic Planning Committee Update

Ms. Dana Tippin Cutler reported that the Strategic Planning Committee met yesterday. She announced that a Board of Governors Strategic Planning Retreat is scheduled for March 30 and 31 and a location will be finalized and circulated soon.  She reported that information and materials will be sent in advance to prepare for the strategic planning session and encouraged members of the Board to attend and to prepare in advance to ensure the most productive result. Mr. Ray Williams explained that an active process will be used in the strategic plan development where the consultants will guide the process, but the writing of the plan and its implementation will be the product of the Board of Governors. Ms. Tippin Cutler also reported that three strategic planning focus group sessions have been scheduled, a session in St. Louis, another in Kansas City and a third in Springfield. She reported that the Strategic Planning Committee recommends adding a fourth session with the staff of The Missouri Bar. This fourth session will require the approval of an additional fee of $1,500. It was moved and seconded to approve the additional focus group session with the staff of The Missouri Bar and the additional cost associated with this session. The motion was approved.    


8.            Officers’ Reports:

    A.                  President's Report

Ms. Dana Tippin Cutler called attention to her written report that was included in the meeting materials. She reported that the meeting materials also included a Report on Missouri’s Judicial Performance Review Program for 2016. She briefly described the changes reflected in the report which were made when the Supreme Court of Missouri issued an order revising Rules 10.50 – 10.55 that included a change in the structure and operation of the process while at the same time retaining the proven methodology for the evaluations by jurors and attorneys based on first-hand knowledge of the judges. She highlighted several of these structural changes including replacing seven JPE committees with one 21-member statewide committee. She further noted a change in the committee’s final recommendations under the procedure, noting that the committee is now only tasked with determining if each judge meets accepted performance standard, not making a specific recommendation as to whether the judge should be retained. She further noted that the interest and retention results, which included utilization of the ballot “fall off” percentage, demonstrated that the revised system is accomplishing its purpose.

    B.                  Vice President's Report

Mr. Ray Williams reported that he attended the recent YLS tailgate at the University of Missouri football game. He praised the YLS for a great event and encouraged members of the Board who attend the games to attend and support this YLS activity.

He reported that he and Missouri Bar Government Relations Directors are visiting legislative leaders and encouraged members of the Board of Governors to also make contact with their legislators. He indicated that the officers and Government Relations staff members are available to accompany Board members on such visits.

Mr. Williams reported that he is considering the possibility of developing a campaign to try to increase the number of lawyers serving in the Missouri Legislature. He noted that Bill Corrigan had initiated such a campaign during his term as president of The Missouri Bar in 2004-05. He indicated that this idea is in the early stages and he welcomes the thoughts and comments of members of the Board of Governors.

Mr. Williams reported that he believes that every lawyer who teaches at a Missouri law school should be a member of The Missouri Bar. He reported that he met with Dean Ken Dean to better understand this situation and discovered that there are some significant technical issues that often stand in the way for some professors, indicating that obstacles include where they received their degrees, where they are currently licensed or where they clerked. He indicated that he is considering ways in which The Missouri Bar might help address these issues and asked for feedback from members of the Board of Governors.

Mr. Williams noted that there are some very challenging issues anticipated for the upcoming bar year and he cited retiring Clerk of the Supreme Court of Missouri Bill Thompson’s remarks made at the Fall Committee Meeting luncheon defining the essence of civility as “when I can help you even when I disagree with you.” Mr. Williams encouraged members of the Board of Governors to keep this in mind in the face of upcoming challenges and in the ongoing efforts of Board members to best represent the 30,000 members of The Missouri Bar. 

    C.                  Treasurer's Report

Mr. Bill Thompson reported that the Supreme Court of Missouri will be sending enrollment statements for 2017 sometime during the first two weeks of December. He indicated that bar cards, however, will not be issued until January due to the change in the Clerk of the Supreme Court effective on January 1. He noted that is has been a  pleasure to work with the Board of Governors over the years and expressed great confidence in his successor, Betsy AuBuchon.

    D.                  Executive Director's Report

Ms. Sebrina Barrett called attention to the media articles in the meeting materials. She also introduced Brett Rolwes as The Missouri Bar’s new Legal and Community Services Coordinator, noting he will be implementing a variety of community-related programs including the new online pro bono web resource. She also noted that efforts are moving forward on the print shop remodel, noting that architect drawings have been developed for use in obtaining bids from contractors. She reported that the Trustees of The Missouri Bar and the Board of Governors will be provided with bids when received. She also called attention to a year-end written report that she has drafted and has provided in the meeting materials. Questions were raised as to whether this meeting could be scheduled earlier in the month of November in future years. It was noted that meeting contracts are currently in place for future years, but possible options will be studied.

There being no further business, the meeting was adjourned.


                                                                                Respectfully submitted,





                                                                                Sebrina A. Barrett, Secretary