2014-2015 BOARD OF GOVERNORS MEETING MINUTES
November 21, 2014
Jefferson City Capitol Plaza Hotel
Reuben Shelton, President
Erik A. Bergmanis, President-Elect
Dana Tippin Cutler, Vice-President
Sebrina A. Barrett, Secretary
Suzanne B. Bradley
Morry S. Cole
Mark W. Comley
Hon. Charles Curless
J. Brent Dulle
Joel R. Elmer
Genevieve M. Frank
James H. Guest
John R. Gunn
Robert S. Kenney
Gregg F. Lombardi
Max E. Mitchell
Nancy R. Mogab
Douglass F. Noland
John E. Price
Joseph P. Rice, III
Tricia M. Scaglia
Deanna K. Scott
Walter R. Simpson
Joan M. Swartz
W. Douglas Thomson
Raymond E. Williams
Eric J. Wulff
Members attending by phone:
John W. Grimm
Edward J. Hershewe
Hon. John F. Kintz
J. B. Lasater
P. John Brady, Immediate Past President
Bevy A. Beimdiek
Robert J. Buckley
Lauren Tucker McCubbin
Hon. George Draper, III
Hon. Richard B. Teitelman
Mr. Reuben Shelton welcomed those attending the meeting of the Board of Governors and introduced the newly appointed Missouri Bar division chairs and the members of the Citizen’s Advisory Task Force.
Mr. Reuben Shelton asked if any changes were needed to the minutes from the 2013-2014 and 2014-2015 Board of Governors meetings of September 10, 2014 as well as the minutes of the 2013-2014 Executive Committee meetings of September 10 and 2014-2015 Executive Committee meetings of September 19, October 2 and October 30, 2014. The Board of Governors accepted the minutes.
A. November Appointments
(1) Judicial Performance Evaluation Committees
Ms. Sebrina Barrett reported that vacancies currently exist on Judicial Performance Evaluation Committees in the 6th, 7th, 16th, and 22nd Judicial Circuits as well as the appellate judicial evaluation committees. She requested that members of the Board of Governors submit recommendations to fill these vacancies for action at the March meeting of the Board of Governors. She further reported that Gail Appleson has been nominated to fill the non-lawyer vacancy on the 21st Judicial Circuit JPE committee. It was moved and seconded to approve the appointment of Ms. Appleson. The motion was approved.
(2) Client Security Fund Committee
Ms. Barrett reported that Max Mitchell’s second term is expiring and he is not eligible for reappointment and Kerry Douglas’ first term is expiring and he does not wish to be reappointed. It was moved and seconded to approve the appointments of Craig Heidemann and Nichole Sublett to fill the two vacancies. The motion was approved.
Ms. Barrett further reported that Lynn Hostetler, a non-lawyer appointment to the IOLTA Board by the Board of Governors, has completed her first 3-year term and is eligible for reappointment. It was moved and seconded to approve the reappointment of Ms. Hostetler. The motion was approved.
B. March Appointments
(1) ABA House of Delegates and Fee Dispute Resolution Committee
Mr. Reuben Shelton reported that recommendations are requested for Missouri Bar vacancies in the ABA House of Delegates, noting that Carla Fields Johnson’s second term as a diversity delegate is expiring and she is not eligible for reappointment, and Brandon L. Corl’s first term as YLS delegate is expiring. He noted that these appointments will be presented for action in March.
He also reported that two appointments to fill vacancies on the Fee Dispute Resolution will be on the agenda in March and requested nominations, noting that the terms of Adele Holt, a non-lawyer appointment, and Jamie Laramore, a lawyer appointment, are expiring. Adele Holt does not wish to be appointed, and Jamie Laramore is not eligible for reappointment.
A. 2015 Bar-drafted Legislative Proposals
(1) Clarification and Standardization of Missouri Commercial Receivership Law and Practice
Mr. Eric Peterson, Chair of the Commercial Law Committee’s Subcommittee on Commercial Receivership, provided an overview of the history and purpose of receivership law. He explained the varied and ad hoc nature of the process currently employed from circuit to circuit and case to case and explained that the committee’s proposed legislation is intended to provide needed clarity, structure and transparency to all parties involved in receivership actions without interfering with judicial function and authority in such cases. He reported that the subcommittee worked on drafting of this legislation for approximately two years, conducting forty meetings and vetting the proposal with a broad range of interested parties including state government, the courts, bankruptcy trustees, law professors as well as banks, financial institutions, title companies and other stakeholders. He reported that the subcommittee most recently considered additional comments and suggestions subsequent to a presentation to the Board of Governors at its September meeting and made some minor changes that are reflected in the version of the proposed bill currently before the Board for consideration and approval. It was moved and seconded that the proposed legislation was within the bar’s legislative scope. The motion was approved by two-thirds of the members present and voting. It was then moved and seconded that the proposal be approved for filing. The motion was approved by two-thirds of the members present and voting.
(2) Designated Health Care Decision-Maker Act
Ms. Debra Schuster provided an overview of proposed legislation related to health care decision making. She reported that Missouri law currently does not provide for a surrogate health care decision maker if an incapacitated person does not have a guardian or health care agent appointed at the time of incapacity. She reported that the proposed legislation is intended to fill a gap between the Durable Power of Attorney for Health Care, the living will and guardianship, codifying what takes place currently in hospitals, nursing homes, hospices and rehabilitation care facilities where individuals who are consenting for treatment of incapacitated individuals are acting outside the scope of the law. She reported that the proposed legislation is modeled after the Uniform Health Care Decisions Act which has been adopted in forty-four states, providing health care providers and families the legal framework and procedural standards and safeguards for facilitating timely surrogate health care decision making for the incapacitated person’s care. Ms. Schuster reported that the legislation has been reviewed and approved by the following Missouri Bar Committees: Health and Hospital Law, Probate & Trust Committee and the Elder Law Committee. Claire Schenk, Chair of the Health and Hospital Law Committee, expressed her committee’s support prior to Ms. Schuster’s report. The legislation has also received support from members of the medical community, including medical ethicists and agencies and organizations involved in these types of health care decisions or who provide support and advocacy for individuals with health conditions which may be impacted by the circumstances being addressed by the legislation. It was moved and seconded that the proposed legislation was within the bar’s scope. The motion was approved by two-thirds of the members present and voting. It was then moved and seconded that the proposal be approved for filing. The motion was approved by two-thirds of the members present and voting.
(3) Expungement and Diversion Legislation
Gwenda Renee Robinson and Jason Lamb, co-chairs of The Missouri Bar Criminal Practice and Procedure Committee, reported on the efforts of a subcommittee appointed to review and develop legislation which would provide for expungements/sealing of records of convictions for certain offenses. It was reported that the subcommittee, comprised of defense counsel and prosecutors, was close to a final version of proposed legislation that balances public safety with the need for providing relief to individuals who qualify under criteria pertaining to the types of cases deemed eligible, the length of time since the conviction and other circumstances deemed appropriate for such action. The proposed legislation is expected to be ready for consideration by the Board of Governors in time for filing during the 2015 legislative session.
B. Changes to Board of Governors Policy Regarding Legislative Procedures
Ms. Catherine Barrie reported on a revision to Missouri Bar policy regarding the review of non-bar drafted legislation, approved by the Executive Committee in 2014 for implementation as a “pilot project” for the 2015 session. Ms. Barrie explained that under this review process, legislative staff will continue to review all non-bar drafted legislation. Bills deemed to fall under the standard set out regarding appropriate activity of a unified bar in the Keller decision, that of improving the quality of legal services available to the people of the state or the regulation of the profession, will be reviewed by the Executive Committee and a decision made as to whether a position will be taken on those measures. Other bills considered to fall outside of the Keller standard but related to The Missouri Bar’s broader scope as relating to the administration of justice will be listed in a separate part of the agenda. These bills will not be taken up for a position by the Executive Committee unless one of the members of the Executive Committee or Board of Governors requests discussion of the measure. Members of the Board of Governors will receive these bills in advance of the Executive Committee meeting. Ms. Barrie reported that all of the bills under both criteria will be sent to the appropriate legislative committees and comments deemed constructive and helpful will be shared with the legislative sponsors whether the bill is reviewed by the Executive Committee or not. Mr. Shelton indicated that this policy would be implemented as a “pilot project” for the 2015 legislative session unless objected to by the Board of Governors. There were no objections to the implementation of the policy.
5. Officers’ Reports:
A. President’s Report
Mr. Shelton reported that he has been very busy since taking office at the Annual Meeting. He reported that he continues to travel and speak to local bar associations throughout the state, recently visiting with the lawyers in the New Madrid area. He reported that he participated in a video program focusing on constitutional issues at the Federal courthouse in St. Louis as part of The Missouri Bar Citizenship Education program. He noted that he has been providing email updates to members of the Board between board meetings and will continue to do so as well as provide updates following Executive Committee meetings.
B. President-Elect’s Report
Mr. Erik Bergmanis reported that the Relevancy to Members Committee has continued to generate Practical Skills podcasts in accordance with Past-President Jack Brady’s directives, noting that eight podcasts are now available to help lawyers learn new skills, address how to handle different types of cases and provide information related to practice management issues. He encouraged members of the Board of Governors to provide ideas for future podcast content and/or to volunteer to present a podcast as part of this initiative. He commended Mr. Ray Williams and staff for their work on this project.
He reported that the Dialogue newsletters are now in digital form, offering a tool for members of the Board of Governors to enhance communication with members in their respective districts.
He further reported that The Missouri Bar will host meetings in Kansas City and St. Louis in January to meet with representatives from large firms and corporate counsel and engage in discussions about how The Missouri Bar can better serve these segments of the legal profession in Missouri.
He noted that The Missouri Bar website has been updated and a second phase update will take place in 2015 which will make the website mobile friendly.
He concluded by reporting that the relevance initiative has also impacted the Enrollment Ceremonies, noting that new enrollee resource information is now available electronically on the Bar’s website, a slide show at the enrollment ceremony highlights Missouri Bar resources and information, resources and materials have been added for distribution to new enrollees, including a folder used to protect their licenses.
C. Vice-President’s Report
Ms. Dana Tippin Cutler reported on the progress of the committee restructuring initiative, noting that Phase I is well underway. She reported that all division chairs who were slated to be appointed during Phase I are now in place. She further reported the efforts will turn to Phase II of the restructuring with the appointment of the Business/Corporate Division chair and committee chairs for new committees in that division identified this spring. She further reported that the second part of the relevance initiative, which will involve proposed changes related to the Board of Governors, will be introduced at the meeting in March.
D. Treasurer’s Report
Mr. Bill Thompson reported that the Supreme Court of Missouri has approximately 90 committees which rely on the involvement and expertise provided by lawyers of The Missouri Bar and he expressed the thanks and appreciation of the Court to all attorneys who volunteer to participate as members of these committees and for the ongoing cooperation of The Missouri Bar. He further reported that Ron Baird has been reappointed to the Trustees of The Missouri Bar.
E. Executive Director’s Report
Ms. Sebrina Barrett reported that 2014 has been a very busy year and that a significant number of goals established at the beginning of the year have been achieved thanks to the combined efforts of leadership, members and staff. She reported that in addition to the relevance and committee restructuring initiatives mentioned earlier, The Missouri Bar also implemented a number of initiatives to assist the veterans community, including conducting legal advice clinics in St. Louis and Columbia, providing a legal profession presence at a number of Veterans Workshops conducted by Congressman Luetkemeyer’s office and launching a program where lawyers who participate in The Missouri Bar’s Lawyer Referral Service discount their legal fees for veterans utilizing the service. She noted that the Mini Law School has been expanded to Kansas City and Columbia with plans to further expand to the Springfield area and a civic education program has been initiated for the prison population. She also reported on a wide range of housekeeping initiatives within The Missouri Bar operations including a complete overhaul of the employee handbook, development of written job descriptions for all Missouri Bar staff, establishing quarterly all staff meetings to collectively share information ranging from HR and organization information to customer service improvement tips. She noted that IT-related security measures have been implemented to protect against data breach threats and going forward security measures are planned for the Missouri Bar facilities, including moving to a key pad entry system. She further reported that a conflict of interest policy has been implemented for the Board and staff and a document retention policy has been developed to move the Bar towards greater electronic storage. She also reported that changes have been made to the Board orientation program and a Board evaluation matrix is being explored. Ms. Barrett reminded the Board of Governors that 2015 bar enrollment fee renewal materials are being mailed to Missouri Bar members in early December and called attention to information provided in the meeting packet which contains key points about the value and benefits provided to members of The Missouri Bar, including a list of benefits with a value that far exceeds the annual enrollment fee. Mr. Shelton encouraged members of the Board of Governors to serve as ambassadors of the Bar by articulating the value and benefits associated with membership, whenever possible.
Ms. Barrett concluded her report by showing three new Missouri Bar Public Service Announcements scheduled for airing on television and radio during 2015.
6. Committee Reports:
A. Client Security Fund Committee
Mr. Chris Janku reported that the Client Security Fund Committee received 134 claims during 2014, the most claims received in a year since the Fund was established in 1966. He reported that the committee held four meetings during 2014, the most recent ones being held on September 22-23 and on November 6. He reported that the Committee made 153 recommendations during 2014 – 126 for payment, 23 for denial, four for dismissal and one claim was withdrawn. He noted that the 126 claims involved 31 lawyers and that 41 of the claims involved just one lawyer. He reported that the Fund budget for 2014 was $234,000 from enrollment fees and $3,000 from anticipated restitution. He noted, however, that $44,000 was actually received in restitution. He reported that the balance of the Fund as of October 31 was $403,706 and that the Committee brings forward 95 claims for payment for a total of $338,780. He noted that the original recommended total payment was about $385,000, but this amount had to be reduced by approximately 12%, so the requisite percentage of the Fund could be carried over as “seed” money as provided for in the Board of Governors Resolution creating the Fund. He reported that the “seed” money totaled $63,718. He reported that the budgeted amount requested for 2015 is $262,000 from enrollment fees and $3,000 is anticipated from restitution, adding the $63,718 held over results in a Fund balance as of January 1, 2015 of approximately $322,000, if the recommendations are approved as submitted. Mr. Janku also requested that the Board of Governors allow for early action on the 14 deferred claims held over for 2015, so payment does not have to wait for November 2015. It was moved and seconded to approve the recommendations of the Client Security Fund Committee as presented. The motion was approved.
Mr. Janku also reported that when a disbarred or suspended lawyer applies for reinstatement, the Office of Chief Disciplinary Counsel routinely requests information concerning any payments made by the Fund with respect to the applicant and requires that reinstatement be conditioned upon reimbursement to the Fund prior to reinstatement. Mr. Janku reported that the Committee received requests from two lawyers that their reinstatement be conditioned upon reimbursement after reinstatement. The Committee recommends that, if the Supreme Court decides to reinstate the two attorneys, that their reinstatement is subject to a term of probation that requires full reimbursement by equal monthly payments, resulting in full reimbursement of the Fund by one month less than the period of probation. It was moved and seconded to approve the recommendation for reimbursement as proposed. The motion was approved.
B. Task Force on Lawyers Helping Lawyers
Mr. Larry Altman reported on the work of this committee to address the serious issue of mental health issues related to suicide within the legal profession in Missouri. He reported that the task force has met five times to discuss and develop a proposal to make a positive impact in this area. Mr. Altman reported that the task force proposes a number of actions, which if supported by the Board of Governors, will be translated into specific plans and programs. He reported that the committee proposes the following:
(1) Educate judges and court clerks to better identify lawyers who may show signs of conditions that may benefit from the services offered by MOLAP, educate court personnel about the services available to lawyers and their families and develop relationships between the courts and MOLAP to foster communication about such lawyers.
(2) Increase the visibility of MOLAP within the legal community by having a greater presence at select CLE programs and conferences through presentations that focus on lawyer wellness, providing for informational tables staffed with lawyers from the task force at events and programs, updating of video resources on a two-year schedule, increase staff and provide a significant increase in the operating budget for the MOLAP department to support enhanced visibility and services.
(3) Keep the Task Force in place and active to plan and implement any proposed actions ultimately approved by the Board of Governors.
Mr. Altman noted the seriousness of this issue within the legal community both nationwide and within the state of Missouri, citing suicide statistics among lawyers in the state of Kentucky and the recent tragic instances within Missouri’s legal profession. He and MOLAP Director Anne Chambers indicated that actions being proposed could result in fewer cases getting to the point where action is required by OCDC and/or reducing the cases presented for action to the Client Security Fund. It was noted that the proposal was not being presented for action today, but that the ideas presented would be sent to appropriate committees for input before a final proposal is brought before the Board of Governors for action.
C. Joint Commission on Women in the Profession
Megan Phillips, co-chair of the Joint Task Force on Women in the Profession, reported on the goals, accomplishments and the future plans for the task force and the associated committee of The Missouri Bar. She reported that major accomplishments this year included the development and launch of a Missouri Women Lawyers’ website, which is part of The Missouri Bar website. She noted that the website contains an enormous library of resources, studies, best practices and articles addressing a wide range of issues related to women in the profession, including statistical information related to the disparity between the percentage of women lawyers in firm leadership versus the total number of women lawyers within the profession, the business cost of attrition among women lawyers in the private sector and pay equity. She also reported that the website includes a blog and is taking advantage of social media tools. She reported that the task force has implemented a law school outreach program, held a number of CLE programs including a pay equity symposium led by members of the ABA Women in the Profession Commission, presented an ethics program at the Spring Committee Meetings as well as presented additional educational programs in the fall. She noted that the task force hired a summer intern from Washington University School of Law who performed significant research which produced many of the resources now available. And she reported that both the June and August issues of The Missouri Bar Precedent magazine focused on women in the profession.
Ms. Phillips reported that pending projects include developing a proposal to include a checkbox to voluntarily report gender on the annual enrollment form. She noted that this proposal has the support of all three women lawyers associations within the state and anticipates that the Bar could also utilize the collection of this information to better target services and marketing. She reported that the task force anticipates bringing this proposal before the Board of Governors for action in March. Other pending projects include continuing to address the issues identified as affecting women attorneys in private practice as mentioned earlier in the report and giving consideration to addressing issues of the lack of maternity leave for state employees, both lawyers and non-lawyers as well as exploring ways to improve the process to reactivate a law license for those who have voluntarily chosen inactive status, an issue that disproportionately effects women who leave active practice to raise children. Ms. Phillips indicated that future activities include developing training related to implicit bias, continuing a summer internship program which rotates among Missouri law schools, continuing law school outreach and production of an annual report. It was noted that the articles in Precedent were cited in the Dupont Women Lawyers’ Network and that the task force will be involved in the Missouri Bar’s Diversity Summit in May.
D. Additional Committee Reports
Mr. Ray Williams reported on the Supreme Court of Missouri’s Constitution Project, noting that this civics education program provides an intensive, interactive competition in which high school students gain experience in the fields of journalism, crime scene investigation and trial advocacy. He explained that the students are presented with a mock crime scene in which they conduct an investigation, report on the incident and eventually try the case in court. He noted that the program matches students with mentors who are professionals in the discipline to provide a hands-on experience to teach civics education. He encouraged members of the Board of Governors to participate in this program.
Mr. Gregg Lombardi reported on an effort by Missouri’s four Legal Aid offices to secure approximately $500,000 per year in funding from the general budget of the State of Missouri for domestic violence prevention work. Mr. Lombardi reported that the Missouri Bar’s Access to Justice Committee voted unanimously to request that The Missouri Bar endorse this effort, noting the tremendous unmet need documented by Legal Aid to provide representation for divorce, protection orders and child custody matter where domestic violence is present and citing how legal representation in these types of cases has been proven to be one of the most effective means of stopping domestic violence. Mr. Lombardi noted that a major portion of the funds generated by the $30 increase to the enrollment fees last year is being used for this purpose, but those funds and the $500,000 of proposed additional funding will still fall far short of the amount needed to meet the full need. He reported that the governor’s office indicated that a $500,000 allocation is feasible; however, a request for a higher level of funding is not. He reported that no action by the Board of Governors is requested at this time and that the Legal Aid offices anticipate asking The Missouri Bar for its endorsement and support of their funding request from the state.
7. Determination of the Allocation of the 2014 Pro Hac Vice Receipts:
Mr. Reuben Shelton reported that a proposal to allocate the discretionary portion of the 2014 pro hac vice fees for technological equipment to be installed at Missouri Bar headquarters was provided in the meeting packet. It was moved and seconded to approve the proposed allocation.
An additional proposal was presented to set aside 1% of the total 2014 pro hac vice fees (estimated at $3,500) to provide reimbursement to Missouri non-profit organizations, which provide needed indigent legal services and/or legal services to low-income individuals similar to that of Legal Aid, for the $50 portion of the annual enrollment fee ($30 fee added by the Supreme Court of Missouri in 2014 and the longtime $20 funding fee for Legal Aid) that these organizations pay on behalf of the lawyers who work for them as full time staff and that is subsequently contributed to Legal Aid. Questions were raised regarding whether such a proposed allocation is intended to be tied directly to this portion of the enrollment fee currently collected by the Supreme Court to support Legal Aid or the funding fee provided to Legal Aid. It was noted that the proposal is based on the authority given to the Board of Governors under Rule 6 to allocate the discretionary portion of the pro hac vice fees received annually. It was suggested that this proposal be tabled to allow time to thoroughly consider and vet the idea. It was noted that the amount of the pro hac vice funds available for allocation at the discretion of the Board of Governors, which is anticipated to be approximately $80,000 for 2014, would be sufficient to make the originally proposed allocation and the proposed reimbursement and that the funds needed for the reimbursement proposal would be kept available until the proposal is properly vetted and timely resolved. The additional proposal described above was tabled.
The motion on the floor was amended to approve the original recommendation for the use of the discretionary portion of the pro hac vice funds to provide for technology improvements at Missouri Bar Headquarters, subject to preserving the amount of funds requested in the tabled proposal until such resolution is vetted and a final decision is made. The motion as amended was approved. Ms. Deanna Scott abstained.
The Board of Governors went into executive session.
There being no further business, the meeting was adjourned.
Sebrina Barrett, Secretary