Board Minutes


Friday, November 20, 2015
Jefferson City Capitol Plaza Hotel

Members present:
Erik A. Bergmanis, President
Dana Tippin Cutler, President-Elect
Nancy Mogab, Vice-President
Reuben Shelton, Immediate Past President
Sebrina A. Barrett, Secretary

Bevy A. Beimdiek
Thomas V. Bender
Amy Bender-Levy
Suzanne B. Bradley
W. Perry Brant
Robert J. Buckley
Nimrod T. Chapel, Jr.
Hon. Nicole Colbert-Botchway
Mark W. Comley
J. Brent Dulle
Joel R. Elmer
Genevieve M. Frank
James H. Guest
John R. Gunn
Robert S. Kenney
Amanda Ketchum
Hon. John F. Kintz
Gregg F. Lombardi
Jennifer E. Matthew
James McConnell
Mira Mdivani
Max E. Mitchell
Douglass F. Noland
Jason Paulsmeyer
John E. Price
Jason Rew
Joseph P. Rice, III
Tricia M. Scaglia
Deanna K. Scott
Hon. W. Douglas Thomson
Raymond E. Williams
Eric J. Wulff

Members present by telephone:
Morry Cole
Debbie Dodge
John Grimm
J. B. Lasater
Karen McCarthy
Lauren Tucker McCubbin

Members absent:
Hon. Charles Curless
Edward J. Hershewe
Joan M. Swartz

Also present:
Betsy Aubuchon
Millie Aulbur
Bill Bay
Lucas Boling
Gordon Brown
Anne Chambers
Danelle Cord
Dale Doerhoff
Farrah Fite
Ellen Flottman
Kent Hopper
Chris Janku
Eric Jennings
Jason Lamb
Michael Magliari
Catherine Martin
Cindy Neagle
Hon. Daniel Scott
Delores Shepherd
Jonathan Sternberg
Hon. Richard B. Teitelman
Gary Toohey
Dr. Johnnie Washington
Eric Wilson

1.            Minutes:

Mr. Erik Bergmanis asked if any changes were needed for the minutes from the Board of Governors meeting of October 7, 2015 and the Executive Committee meeting held October 6, 2015.  It was moved and seconded that the minutes be accepted and approved with a change to page 6, paragraph C(1) of the October 7, 2015 Board of Governors meeting minutes, replacing the word “Keller” with “the IRS.” The motion was approved.

2.            eAccess Survey:

Judge Dan Scott presented an eAccess Task Force request for permission to survey a sample of Missouri Bar members. Judge Scott advised the Board that earlier in the year the Supreme Court of Missouri identified broad remote public access to as a policy to be pursued so that the public has the same remote access as lawyers to e-filed documents. He further reported that the Court appointed the eAccess Task Force to examine the various issues involved in providing public access, including privacy, funding, and security. He reported that the eAccessTask Force is requesting Board permission to survey a random sample of approximately 4,000 Missouri lawyers to gain input regarding some of the issues. He advised that the proposed survey would consist of eleven questions and would be distributed electronically and responses would be anonymous.

A question was raised as to whether the survey would also include an area allowing respondents to provide written comments in addition to answering survey questions. Judge Scott indicated that it would be good to add a written comment section to the end of the survey. It was moved and seconded to approve the request for permission to send the electronic survey to Missouri Bar members.  The motion was approved.

3.            Finances:

    A.            Budget Update

Judge Doug Thomson provided the financial report, noting that the current financial status is very good and on target for the year. Judge Thomson directed the Board's attention to the proposed 2016 budget.

    B.            Executive Session

The Board of Governors went into Executive Session to discuss personnel matters and salaries.  It was moved and seconded to approve the draft budget for the 2016 year.  The
motion was approved.

    C.             2015 Pro Hac Vice Allocation

Mr. Bergmanis reminded the Board that currently, 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. He reported that the discretionary portion of these funds is currently approximately $72,000 and additional funds are expected before the end of 2015. Mr. Bergmanis reported that the Supreme Court of Missouri has requested $50,000 from the discretionary funds to be used as additional funding for the Commission on Race and Ethnic Fairness. He noted that the Executive Committee and Finance Committee recommend approving this request. Mr. Bergmanis proposed distributing the remaining discretionary balance as follows: (1) 50% to The Missouri Bar Foundation with the stipulation that it develop criteria for the distribution of those funds to other not-for-profit legal services organizations that serve the underprivileged and distribute the funds equally to organizations that apply and meet that criteria; and (2) 50% to fund The Missouri Bar's public information campaign of civic education on the Missouri Non-Partisan Court Plan. It was moved and seconded to approve the Executive Committee and Finance Committee recommendations as presented. The motion was approved.

4.            November Appointments:

    A.            Judicial Performance Evaluation Appellate Committee

It was moved and seconded to refer nominations for the November non-lawyer vacancy from the Eastern District on the JPE Appellate Committee to the Appointments   Committee for recommendation to the Board. The motion was approved.

    B.            Client Security Fund and Lawyer-to-Lawyer Dispute Resolution Committee

It was moved and seconded to refer the November Client Security Fund nomination to the Appointments Committee. The motion was amended to also refer the March appointment of the Lawyer-to-Lawyer Dispute Resolution Committee to the Appointments Committee for recommendation to the Board. The amended motion was approved.

5.            Legislation:

    A.            Criminal Law

Ms. Ellen Flottman and Mr. Jason Lamb reported on proposed legislation tabled at the October 7, 2015 Board meeting, which allows for the expungement/sealing of records of certain non-violent, first-time criminal offenses. It was moved and seconded that the proposed legislation is in scope. The motion was approved by two-thirds of the members of the Board of Governors present and voting. It was moved and seconded to approve the legislation for filing. The motion was approved by two-thirds of the members of the Board of Governors present and voting.

    B.            Probate and Trust Law

Ms. Michael Magliari reported on proposed legislation regarding the small estate affidavit that was tabled at the October 7, 2015 Board meeting. The proposed legislation would amend Section 437.097 and 473.100, RSMo to increase the threshold of a small estate from $40,000 to $100,000. Mr. Magliari reported that the Estate Planning Committee modified some of the bonding requirements as suggested at the October 7, 2015 meeting, and voted to go forward with the proposed $100,000 threshold. It was moved and seconded that the proposed legislation is in scope. The motion was approved by two-thirds of the members of the Board of Governors present and voting. It was moved and seconded to approve the legislation for filing, with a threshold dollar amount up to $100,000. The motion was approved by two-thirds of the members of the Board of Governors present and voting. Ms. Karen McCarthy abstained.

    C.            Civil Practice and Procedure

Mr. Jonathan Sternberg informed the Board that the Civil Practice and Procedure Committee is drafting proposed legislation to create a permissive interlocutory appeal. Mr. Sternberg noted that Missouri is one of only four states that is a pure writ state and the committee is exploring a modified version of the federal interlocutory appeal procedure that would apply to criminal and civil matters. It was noted that the Supreme Court of Missouri's Rules Committee determined the proposed procedure would require a legislative change. As this was presented for informational purposes only, no Board action was taken.

6.            Pro Bono Initiative

Mr. Ray Williams reported on the Proposed Pro Bono Initiative that was tabled at the October 7, 2015 Board meeting. He explained that this is an ABA Pro Bono & Public Service Committee initiative to establish and maintain a multi-state interactive pro bono website that helps address the justice gap and unmet legal needs of low-income individuals. Mr. Williams provided an overview of the question and answer platform developed for Online Tennessee Justice that serves as the template for the website. He reported that the platform would allow low-income individuals from Missouri to post up to three legal questions per year and have those questions answered pro bono by volunteer lawyers from Missouri.

Mr. Williams reported that questions raised at the previous meeting have been addressed and there is a consensus that The Missouri Bar should opt into and participate in the multi-state pro bono website. He further reported that participation in the initiative is expected to be effectively cost-free except for staff time. It was moved and seconded to approve Missouri Bar participation in the ABA Pro Bono & Public Service Committee’s initiative to establish and maintain a multi-state interactive pro bono website. The motion was approved.

7.            Committee Reports:

    A.            Client Security Fund

Mr. Chris Janku reported that the Client Security Fund Committee had a busy and productive year. It received 80 claims, which is less than the record number of 144 claims received in 2014. In September and October, the Committee conducted three full days of hearings and meetings. As a result, the Committee recommends payment of 40 claims, denial of 31 claims, dismissal of 7 claims, and deferral of 4 claims. He further reported that the Committee requests approval to bring the deferred claims back to the Board before November 2016.

Mr. Janku reported that the total recommended for payment is $146,327.00. He noted that the current balance in the Client Security Fund as of September 30, 2015 is $325,211.06. It was moved and seconded to approve the Client Security Fund Committee's request for payment, denial, dismissal, and deferral of claims. The motion was approved.

Mr. Janku presented the Committee’s request to amend Article 2.6 of its Regulations and Rules of Procedure. He explained that currently under Article 2.6, one Committee member can be delegated to conduct the hearings and bring a recommendation to the full Committee for review on claims of $2,500 or less and the Committee develops a recommendation for the Board's approval. For claims between $2,500 and $5,000, three Committee members can hold the hearings and bring their recommendations to the full Committee to develop a recommendation for the Board’s approval. Mr. Janku noted that these claim amounts have not changed since 2002. He reported that the Committee requests that Article 2.6 be revised so that claims less than $5,000 can be delegated to one Committee member to conduct the hearings, and claims between $5,000 and $10,000 can be delegated to three Committee members to conduct the hearings. It was moved and seconded to approve the Committee's request as proposed. The motion was approved.

    B.             Judicial Performance Evaluation Program

Mr. Dale Doerhoff, State Coordinator for the Judicial Performance Evaluation Program, presented his report on Missouri’s Judicial Performance Evaluation Program. He noted the long history of Missouri Bar involvement with judicial performance evaluations, dating back to 1948. He noted that success for these programs is not measured by whether judges are retained or not; but whether voters consider themselves informed enough to participate. Mr. Doerhoff observed that Missouri has strong voter participation that no other state equals. He drew attention to data within the report showing the continued upward trend in voter participation in Missouri, noting the significance of an increase in voter participation at the lower portion of the ballot containing the judicial retention candidates compared with the top of the ballot. He noted that the report includes a description of The Missouri Bar's multidimensional plan for educating the public about the evaluation results and he also explained that Missouri’s Judicial Performance Evaluation Program includes a self-improvement process that asks judges and committee members for input on the process and a review of best practices from other states.

    C.             Task Force on Expert Witness Legislation

Mr. Doerhoff, chair of the Task Force on Expert Witness Legislation, reported that the task force is looking at proposed legislation introduced in the last session that would adopt the federal Daubert standard for expert witnesses in Missouri and replace section 495.065, RSMo. He reported that the twelve members of the Task Force had an organizational meeting in September and explained that the role of the Task Force is to develop information for the legislature, including the impact the adoption of a Daubert standard would have on the administration of justice and access to justice. He reported the Task Force will prepare and submit reports to The Missouri Bar’s Executive Committee.

    D.            Young Lawyers Section Update

Mr. Brent Dulle provided an updated on the activities of the Young Lawyers Section (YLS). He reported the YLS is considering adding a diversity seat that rotates among Missouri’s three appellate districts. He explained that a bylaws change will likely be required to add that seat. He further reported that YLS Section Council members were instrumental in bringing the 2016 ABA Young Lawyers Division Spring Meeting to Missouri, May 5 – 7 in St. Louis. Mr. Dulle reported that The Missouri Bar’s Young Lawyers’ Section has taken over an inmate civic education program originally started by the Mid-Missouri YLS and that this program was selected for an ABA award for service to the public. He reported that the YLS has received more requests this year than in the past for regional and special projects funds and is actively using those funds. He concluded by noting that the decision to move the YLS New Lawyer Practice CLE Series at the Annual Meeting to a Wednesday afternoon time slot was a success and resulted in increased attendance.

8.            Officers’ Reports

    A.             President's Report

Mr. Erik Bergmanis reported that Mr. Greg Lombardi had suggested the Board of Governors pass a resolution wishing Missouri Bar staff member Bob Stoeckl a speedy recovery from a recent accident. The resolution was passed by acclamation.

Mr. Bergmanis reported on a list of activities, presentations and duties that he has been involved in since the last meeting of the Board. He reported that he attended the September 30 Task Force on Expert Witness Legislation organizational meeting referenced in Mr. Doerhoff’s report; viewed a demonstration of the ABA pro bono website designed to address the justice gap; attended the KCMBA Annual Meeting; and traveled to Virginia for a Southern Conference of Bar Presidents meeting. He presented at the Missouri Lawyers’ Assistance Conference in St. Louis and at the Springfield Metropolitan Bar Association monthly luncheon. He also attended the Magna Carta dinner and exhibit in Springfield and attended the Ninth Circuit Annual Meeting in Brookfield. Mr. Bergmanis further reported that he represented The Missouri Bar at the fall new lawyer enrollment ceremonies at the Supreme Court of Missouri. In addition, Mr. Bergmanis noted that he filmed 2016 Public Service Announcements at the Bar Center and participated in the trustee print shop discussion and the Finance Committee and Executive Committee budget meeting. Mr. Bergmanis also reported that he and Ms. Barrett have weekly telephone meetings on Monday morning to discuss pending matters.

Mr. Bergmanis further reported that that the pilot legislative review process will continue. He requested the Board authorize the formation of a special committee to study the Keller standard to examine what other jurisdictions are doing compared to The Missouri Bar and prepare a recommendation and educational presentation to the Board. It was moved and seconded to authorize Mr. Bergmanis to form the special committee. The motion was approved.

    B.             President-Elect's Report

Ms. Dana Tippin Cutler reported that all four special Board committees are going forward. She recommended that, ideally, all the committees will try to schedule phone conferences between now and the end of December. She reported that staff liaisons have been assigned to each committee. She further reported that the Strategic Planning Committee work will include addressing the issue of evaluating the Executive Director in a different time frame.

    C.             Vice-President's Report

Ms. Nancy Mogab reported that she attended the Southern Conference of Bar Presidents meeting, which included discussions of merit selection plans and pro bono initiatives. She further reported that she will continue to work on various assigned projects and is looking forward to working on legislation.

    D.             Treasurer's Report

Ms. Betsy Aubuchon reported that the Supreme Court of Missouri issued an order regarding amnesty for corporate counsel that will continue through 2016. She noted that the Court appreciated working with the Bar on the amnesty program. She further reported on a number of Court actions related to rules. She reported that the Court approved a rule to allow electronic voting for Board of Governors elections; adopted Rule 6.06 to make it easier for members who are inactive to return to active status; made a change in the continuing legal education rule so that starting July 1, 2016, programs related to mental health or substance abuse will be eligible for ethics and made a change to Rule 2-2.3, Bias and Harassment, adding gender identity. She reported that members will now have the option of checking a box on their bar fee statements to indicate their gender. Ms. Aubuchon also noted that a new feature, "Track My Case," was recently added to, which allows users to get email notifications when there is a change in the status of cases they are tracking. 

    E.             Executive Director's Report

Ms. Sebrina Barrett thanked The Missouri Bar staff for their work during the past year. She reported that with the bar fee statements being mailed soon, it is a good time to highlight three new member benefits. She reported on a memorandum of understanding between the Supreme Court and the Bar that will allow the Bar to provide the criminal instructions and charges online free to members, noting that they will be available in the member's-only section of the website by early January 2016. She reported that The Missouri Bar Private Insurance Exchange administered by Member Benefits launched in 2015 and since October 1, 2015, web traffic has included 1733 sessions with 1333 users and informational webinars attracted 49 attendees. She noted that open enrollment just started and so far Member Benefits has signed six policies and Member Benefits expects the numbers to increase between December 15 and January 30.  Ms. Barrett thanked Mr. Ray Williams, Mr. Joe Rice, members of Insurance Programs Committee, and staff who worked on the insurance exchange project.

She further reported that The Missouri Bar launched connect.MOBAR, a new online community just this week. Within the first week, there have been more than 2,000 logins, more than 1,000 members have agreed to the terms of service, and 551 members created a profile.

Ms. Barrett directed the Board's attention to the packet of media articles and statistics in the agenda materials. She noted that the agenda materials include information on the Citizens Advisory Task Force that was requested at the last meeting as well as an end-of-year report she prepared for the Board's review. Ms. Barrett invited individual members of the Board to contact her with any questions, suggestions, or feedback.

9.            Other Business:

The Honorable Richard B. Teitelman, on behalf of the Supreme Court of Missouri, thanked the Board for its support of the 2015 diversity conference.

There being no further business, the meeting was adjourned.

Respectfully submitted,

Sebrina A. Barrett, Secretary