Board Minutes


July 18, 2008
Big Cedar Lodge, Branson, Missouri

Members present:
Charlie J. Harris, President
Thomas M. Burke, President-Elect
H.A. Skip Walther, Vice-President
C. Ronald Baird, Past President
Keith A. Birkes, Secretary
William R. Bay
Erik Bergmanis
Suzanne B. Bradley
P. John Brady
Hon. Richard Bresnahan
Thomas J. Casey
Mark W. Comley
Brian Francka
Virginia L. Fry
Alan B. Gallas
Tracy H. Gilroy
Mike Greenwell
Richard F. Halliburton
Edward J. Hershewe
Vincent F. Igoe, Jr.
John S. Johnston
Jennifer M. Joyce
Hon. John F. Kintz
Thomas M. Lang
William J. Lasley
Mark H. Levison
Karen King Mitchell
Matthew M. Mocherman
Douglass F. Noland
Deanna K. Scott
Allan D. Seidel
Howard A. Shalowitz
Reuben Shelton
Walter R. Simpson
Wallace Squibb
Patrick B. Starke
Lynn Ann Vogel
James C. Wirken
Eric J. Wulff

Members absent:
H. Lynn Henry
Aaron D. Jones
Attending by Telephone:
Dana Tippin Cutler
Carol Chazen Friedman
Max E. Mitchell
Daniel A. Raniere
W. Edward Reeves
Also Present:
Hon. Richard Teitelman (by phone)
Millie Aulbur
Catherine Barrie
Lucas Boling
Jim Brady
Kent Hopper
Chris Janku
Dan Lehmen
Stephen Murrell
Linda Oligschlaeger
Robert Stoeckl
Gary Toohey
Jack Wax

1. Minutes:

It was moved and seconded that the minutes of the meeting of the Board of Governors of May 9 and of the Executive Committee meetings of May 8, May 19 and June 6 be approved. The motion was approved.

2. Finance Committee Report:

Mr. Erik Bergmanis reported that The Missouri Bar’s finances are in good shape and that revenues and expenditures are tracking within budget through the current point in the Bar year. He circulated financial statements. He also circulated the 2007 audit report, noting the significance of receiving a clean report. He stated that the only item raised in the audit pointed out that the firm doing the audit also authored the notes, suggesting that the Bar may want to have another audit firm complete this function. Mr. Bergmanis reported that the Finance Committee considered this issue last year and concluded that it would not be worth the added expense to engage a separate audit firm for this function. He further reported that the Finance Committee continues to hold this opinion and does not recommend taking such action or incurring such expense.

Mr. Bergmanis presented an Annual Meeting budget for approval. It was moved and seconded that the Annual Meeting budget be approved. The motion was approved. He further commented that sponsorship levels at last year’s Annual Meeting in Springfield were twice as high as normal, and if Kansas City firms pull together in the same way, receipts may be higher than projected.

3. Legislation:

Ms. Catherine Barrie reported that two bar-drafted bills, passed during the legislative session, were signed by Gov. Matt Blunt. The first measure consolidated administration of two funding sources for legal services, facilitating appropriation and distribution of these funds to the programs. The second, drafted by the Environmental and Energy Law Committee, authorizes the Administrative Hearing Commission to make summary determinations, improving judicial efficiency. She also reported that the Judicial Branch budget was signed without any line item vetoes.

Ms. Barrie noted there were a number of bills that did not make it through the process of review by the Executive Committee during the last session. The Executive Committee reviewed those bills, and the materials containing Executive Committee positions were posted on the Board listserv and also provided in the meeting materials. No motions to reconsider were offered.

Ms. Barrie reported that six committee-drafted legislative proposals have been received for the 2009 legislative session. The proposed legislation includes four bills from the Family Law Section, several of which were submitted previously. Another bill was submitted by the Commercial Law Committee that bill clarifies 2003 bankruptcy exemption legislation and adds a new subsection related to personal injury claims to Missouri exemption law. The Elder Law Committee is drafting a measure to make technical corrections to a recently approved law dealing with the right of sepulcher. A final draft is expected to be approved at the Fall Committee Meetings and submitted to the Bard at that time. She reported that no action was required at this time and that all of the legislative proposals will be circulated to bar associations within the state, as well as within the Legislative Committee. All proposals, except for the Elder Law Committee right of sepulcher legislation, will be brought to the Board for approval at the Annual Meeting.

She also reported on the recent visit by officers of The Missouri Bar to the state's Congressional delegation in Washington D.C., noting that the topics addressed during the visit included funding for Legal Services, attorney-client privilege protection legislation and workers’ compensation settlements and Medicare set-aside.

3. Leadership Academy:

Ms. Gretchen Lea Yancey thanked the Board of Governors for creating and maintaining the Leadership Academy and gave a brief overview of the composition of the class of 2007-08, commenting on the value of the wide diversity among it members. Robert Orbals, Jr. briefly described and showed a 52 second video featuring young lawyers speaking in support of the Non-Partisan Court Plan, the group’s annual community service project. He gave special thanks to Shahzad Naseem for spearheading the video effort. He noted that the video is intended to reach the college student target market. He reported that it is their intention to work with Jack Wax, director of media relations for The Missouri Bar, to make the video available on the Bar’s website and YouTube. He also reported that in addition to developing the video, this year’s annual project included an outreach component where members of the Leadership Academy visited and spoke about the Non-Partisan Court Plan at colleges and universities within Missouri.

At the conclusion of the report, each member of the Leadership Academy reported on his or her individual plans to fulfill the two-year commitment to The Missouri Bar, following the end of this Leadership Academy year.

4. Appointments:

A. July Appointments

(1) Alcoholism Intervention Committee
Mr. Keith Birkes reported that the term of Ms. Nancy Pew is expiring and she is eligible for reappointment. It was moved and seconded to approve the reappointment of Ms. Pew. The motion was approved.

B. September Appointments

(1) Trustees of The Missouri Bar
Mr. Birkes reported that Countess Price’s second term as a Trustee will be expiring, and she is not eligible for appointment. He noted that an appointment will be made at the September meeting.

5. Committee Reports:

A. Lawyer Advertising Committee

Mr. Mark Levison gave a brief overview of the composition of the Special Committee on Lawyer Advertising. He also briefly described four subcommittees, acknowledging the chairs and outlining their areas of focus. He provided a brief overview of the past actions taken by the committee, including the drafting of new rules in 2006 which were adopted verbatim by the Supreme Court of Missouri. And he briefly reviewed the recent decision to reconstitute the committee.

He noted that the changes being recommended by the committee are intended to address concerns that existing rules are not being followed, and additional rule changes are needed. He informed the Board that there have been efforts to address lawyer advertising through legislation and cautioned that the profession may loose its ability to govern itself in this area, if these issues are ignored.

Mr. Levison and other members of the committee reviewed the following proposed changes to rules on lawyer advertising:
• The addition of a preamble calling attention to the effect of lawyer advertising on the perception of the profession.
• Claims related to a lawyer’s successes/results in past cases.
• Restriction on celebrity endorsements.
• Vilification in advertising.
• Misleading ads offering discounts and implying ability to influence public officials or governmental entities.
• Preservation of transitory TV and radio advertising.
• Provisions to identify and report violations.
• Requirements on content, use and timing of mandatory disclosure.
• Restrictions on direct solicitation to the public.

Questions and discussion centered on the likelihood of constitutional challenges to proposed changes; how proposed changes would be applied to out of state law firms; whether some proposed rules could put Missouri lawyers at a disadvantage; actions taken by OCDC; concerns about the effect of disclosure requirements on “soft” advertising engaged in by some firms in major metropolitan areas, as well as Legal Service entities.

Two procedural options were outlined to circulate proposed changes and receive comments from members of The Missouri Bar, as well as timing of future review and action by the Board of Governors. One option would incorporate a comment period that would allow the Board to take action at the September Board meeting. A second option would allow for Board action at the November meeting. Concerns were raised about releasing proposed rules that could be constitutionally challenged, as well as the possibility that lawyers might mistakenly believe that the Board of Governors have approved or endorsed the proposed rule changes.

It was moved and seconded, that the Board be given two weeks from the conclusion of the summer meeting to review and make any suggestions before the proposed changes are circulated to the members of The Missouri Bar for comment. Proposed rules would be disseminated for comment from the Bar on August 1, and the methods of dissemination will clearly communicate that this is the action of the committee and the Board has not endorsed or taken any action. The comments received will be reviewed by the committee with any changes incorporated into a final set of proposed rule changes that the Board can review and act on at the September meeting. The motion passed. The following Board members voted no: William R. Bay, H.A. Skip Walther, and Karen King Mitchell

B. Client Security Fund Committee

Mr. Chris Janku called attention to the Client Security Fund Committee report provided at the meeting and briefly reviewed the regulations and rules that govern the payment of claims under the fund. He reported that the Client Security Fund Committee is recommending the payment of 5 claims for a total of $4,465.00. The committee recommends denial of 3 claims. He further reported that the Committee has received 27 claims in 2008 and additional claims have been held over from previous years. Additional claims will be brought before the Board of Governors at a later meeting. It was moved and seconded to approve the payments of $4,465.00 and the denial of 3 claims. The motion was approved.
Mr. Janku also reminded the Board that the Committee notifies the Office of Disciplinary Counsel and the Advisory Committee of all payments and requests that reinstatement of suspended or disbarred lawyers be conditioned upon reimbursement to the Fund. There was a brief discussion as to whether there could be an assignment of the amount paid by the Fund, especially in cases of repeat offenders, and whether lawyers can volunteer to initiate action to obtain a judgment against the party. It was noted that such action would be welcomed.

C. Executive Committee

(1) Professionalism

Mr. Birkes reported that the Chief Justice, President Harris and other bar leaders around the state have had some discussion about additional ways to improve professionalism. It was noted that several states have recently appointed commissions for this purpose. He reported that the Executive Committee reviewed the efforts underway in other states as well as other information on the issue and recommends that the Board appoint a special committee of The Missouri Bar to study the issue. It is recommended that the committee be charged with the task of making a thorough review of the current efforts being undertaken in Missouri, as well as the efforts underway in other states, to enhance professionalism and that the committee make a report with any recommendations to the Board in late January 2009. Additional discussion focused on whether it would be more appropriate for this group to be named a task force, rather than a special committee, with a specific purpose and limited timeframe to conduct its work. It was moved and seconded that a task force be appointed. The motion was approved.

(2) The Judicial Excellence Award

Mr. Birkes requested nominations for the Bar’s Judicial Excellence Award, reminding the Board that the award is given annually to one or sometimes two judges who meet the criteria for the honor, and on several occasions it has been awarded posthumously. He circulated a form asking Board members to make recommendations for this year’s award. The final selection(s) will be made by the Executive Committee.
Mr. Birkes further reported that the Executive Committee recommends the Judicial Excellence Award be renamed the Judge Theodore McMillian Judicial Excellence Award, in memory and honor of what Judge McMillian stood for. It was moved and seconded to approve the recommendation to rename the award. The motion passed.

(3) Dues Protests and Refund Requests

Mr. Birkes briefly reviewed that the Board, at its last meeting, denied approximately 12 requests for a refund of dues related to the public education campaign regarding the justice system. Mr. Birkes reported that he informed the members who made the dues protests of the Board’s action by letter. He further reported that only one of the 12 subsequently expressed an interest in proceeding with the next step in the dues protest procedure. The next step calls for mediation with fees split 50/50 between the parties, and University of Missouri School of Law was suggested for the mediation. As of this time, the party has not responded.

(4) Case Management Conferences

Mr. Birkes reported that a suggestion was made during the Board of Governors reception at the Solo and Small Firm Conference that The Missouri Bar explore avenues to encourage judges to hold more docket and case management conferences by telephone. The Executive Committee decided that the suggestion should be referred to the Civil Practice and Procedure Committee for review and consideration.

(5) Judicial Evaluation Committees

Mr. Birkes reported on the Judicial Evaluation Committee process as part of the Public Education Regarding the Justice System section in (6) below.

(6) Public Education Regarding Justice System

Mr. Birkes reported that the survey and focus group activities related to the public information effort are complete. He noted that no initiative petitions that would alter the manner in which judges are selected in Missouri were approved in the previous legislative session for the November ballot, so there may be less need to utilize the funds authorized for this purpose. He reported that approximately $200,000 of the $500,000 has been expended to date.

He reported that the Executive Committee discussed and recommends using $15,000 to promote to the public the results of the Judicial Evaluation Survey, including educating the public about the new additions made to the process, namely the creation and role of the Judicial Evaluation Committees. The communication effort will also tell the public how they can access the information for use in November retention elections. He reported that the six Judicial Evaluation Committees have been appointed and the results of their work should be released in early September.

It was reported that questions related to the image of lawyers were part of the focus group segment and from this information, some conclusions were drawn that the somewhat negative perceptions of lawyers may be connected to lawyer advertising.

Mr. Birkes reported that there is uncertainty as to whether there will be activity from groups in opposition to the Non-Partisan Court Plan this November. He noted that there may be some activity directed toward the Appellate Judicial Commission related to selecting a panel to fill the vacancy on the Supreme Court of Missouri. It is also possible that there may be an effort to unseat one or more judges standing for retention or even toward elected judges in Missouri. It was noted that the Bar has in place a policy to respond to unfair and inaccurate criticism and attacks on judges and would respond.

Mr. Birkes reported that plans are in place that will allow The Missouri Bar to react quickly, should there be unfair attacks on the judiciary or justice system and these include producing radio ads and calling news conferences. He noted that obstacles may exist regarding the availability of air time in the case of eleventh-hour attacks in an election year.

Mr. Wallace Squibb reported that Greene County is well on its way to collecting the required number of signatures to place the Non-Partisan Court Plan on the ballot in November. He reported that there is bipartisan support in Greene County for the adoption of the court plan. He noted that there are concerns that out of state forces may mount an attack on this effort. He reported that the Non-Partisan Court Plan is well received by the electorate when they understand it and would anticipate that there may be a request to The Missouri Bar to provide general public education about the plan in that area of the state.

Mr. Birkes noted that the Missouri Bar’s official position on the expansion of the Non-Partisan Court Plan is that it is a local matter. And it would be a policy question for the Board to decide whether any action should go beyond general public education.

It was moved and seconded that $15,000 be authorized to promote to the public the results of the Judicial Evaluation Survey, including educating the public about the new additions to the process, namely the creation and role of the Judicial Evaluation Committees and how the public can access the information for use in November retention elections. The motion was approved.

It was agreed that the Executive Committee should explore what activities, if any, would be appropriate to educate the public about the Non-Partisan Court Plan in Greene County and bring recommendations to the Board for review and action at the September meeting.

(7) Public Defender Study

Mr. Birkes reported that the study to determine the status of the Missouri Public Defender System workload is underway. He also stated that reports are circulating that presiding judges in 10 Missouri circuits have been advised that Public Defenders in those circuits will soon stop taking certain cases. It is anticipated that the judges, prosecutors and public defenders in those circuits will be meeting to consider options and solutions.

He indicated that The Missouri Bar has supported an overall increase in funding for the Public Defender Systems as a solution. It was noted that this may be an option with a new governor. In the meantime, there may be litigation related to the lack of funding or in response to judges holding Public Defenders in contempt. He noted that there is a good possibility that Missouri lawyers within a short time period will be appointed to handle cases. It was noted that a meeting had been held in Greene County and appointments will begin there in September. Mr. Birkes informed the Board that the Bar will initiate efforts to educate lawyers, so they are in a position to handle these cases.

6. Officers Report:

A. Executive Director’s Report

(1) Board of Governors’ Elections

Mr. Keith Birkes announced that ballots for the election of the Board of Governors have been mailed, noting that there are contested elections in Districts 2, 4 and 12. Four board members are leaving by virtue of not filing for the election. Result will be released on August 15.

(2) The Missouri Bar’s Professional Liability Insurance

Mr. Birkes reported that there were concerns that our provider would not renew the Bar’s professional liability insurance coverage, however, AIG has renewed it for one year.

(3) Fastcase

Mr. Birkes reported that Fastcase continues to be well received by members of The Missouri Bar and its utilization is increasing gradually and it remains an excellent benefit for Missouri lawyers.

(4) Fee Dispute Resolution Reports

Mr. Birkes reported that there are copies of the Fee Dispute and Complaint Resolution Annual Reports in the materials.

B. Vice-President’s Report

Mr. Walther deferred to the President-Elect.

C. President-Elect’s Report

Mr. Tom Burke commended the work of Dale Doerhoff and those involved in organizing and implementing the Judicial Evaluation Committees, commenting that the committees are up and running and should be of great benefit to voters in November.

He also reported that he attended the Solo and Small Firm Conference in June at the Lake, noting that it was once again very successful and encouraging Board members to make a point to attend.

He reminded the Board that the Bar does a lot to foster professionalism, giving examples of mentoring and CLE, but he indicated that the Bar can and should continue to find ways to do more.

Mr. Burke reminded the Board that the Mid-Year Meeting is January 12-19 and will be held at the South Seas Resort on Captiva Island in Florida. He noted that there are inexpensive airfares available to Fort Myers, if reservations are made early.

D. President’s Report

(1) Annual Meeting

Mr. Charlie Harris reported that the Annual Meeting is scheduled for September 17-19 at the Westin Crown Center in Kansas City and is expected to be an excellent conference. He briefly reviewed some of the programming being planned, noting that the presenters include Dennis Archer, Frank Angones, and Robert Grey, Jr. He noted that Senator Claire McCaskill is also going to attend. The Best of Missouri will be held at the American Jazz Museum and the Negro League Baseball Museum.

Keith Birkes also announced that sponsorship opportunities are available for firms interested in supporting the Annual Meeting. Interested board members should contact either Keith Birkes or Bob Stoeckl.

(2) Congressional Visits

Mr. Harris reported that the visits to Missouri’s Congressional Delegation went very well as previously reported in Ms. Barrie’s remarks.
There being no further business, the meeting was adjourned.

Respectfully submitted,
Keith A. Birkes, Secretary