Board Minutes

2004-2005 BOARD OF GOVERNORS MEETING May 13, 2005
Capitol Plaza Hotel, Jefferson City, Missouri

Members Present:
Joe B. Whisler, President
Douglas A. Copeland, President-Elect
C. Ronald Baird, Vice-President
William M. Corrigan, Jr., Past President Keith A. Birkes, Secretary

Erik Bergmanis Joseph C. Blanton, Jr.
P. John Brady
Hon. Richard Bresnahan Newton C. Brill Thomas M. Burke Thomas J. Casey
Dana Tippin Cutler Sherry Doctorian
Carol Chazen Friedman Chad A. Gaddie
Mike Greenwell Richard F. Halliburton Charlie J. Harris Bruce F. Hilton Vincent F. Igoe, Jr.
John S. Johnston George E. Kapke Hon. John F. Kintz Thomas M. Lang William J. Lasley Karen R. McCarthy Max E. Mitchell John A. Ruth
Allan D. Seidel Robert H. Shaw Wallace Squibb Alok K. Srivastava Richard G. Steele
Lynn Whaley Vogel
H.A. Skip Walther Hope Whitehead James C. Wirken Eric J. Wulff

Members Absent: Ed Hershewe Sylvester James, Jr. Mark H. Levison

Present by Telephone:
Daniel A. Raniere

Also Present: Millie Aulbur Catherine Barrie Wayne Greer Kent Hopper Jim Brady
Chris Janku Dan Lehmen Stephen Murrell
Linda Oligschlaeger Delores Shepherd Robert Stoeckl Gary Toohey Samantha Ward Jack Wax

1. Minutes:

It was moved and seconded that the minutes of the meetings of the Board of Governors of January 21 and of the Executive Committee meetings of January 21, January 28, February 15, March 3, March 30, April 25 and April 28 be approved. Mr. Lang amended the motion and it was seconded to correct the January 21 minutes to indicate that he was present by telephone and that the location of the 2006 Midyear will be held at the Hilton Marco Island Beach Resort, rather than the Marco Island Sheraton Hotel. The motion was amended motion was seconded and approved.

2. Financial Report:

Mr. Burke reported that The Missouri Bar’s receipts and expenditures were on track for 2005. He reported that concessions and incentives have been negotiated at the Springfield venue that should offset the $15,000 penalty paid to Tan Tara for the cancellation of the 2007 Annual Meeting contract.

3. Legislation:

Catherine Barrie called attention to various written reports included in the meeting packet providing information on legislation from the 2005 session. She reported that funding for the judiciary was passed at essentially the same level as 2004. She noted that three resolutions were introduced to change Missouri’s Non-Partisan Court Plan; none were heard in committee. She indicated that a resolution was heard, to change the procedure for the impeachment of judges, moving hearings from the Supreme Court of Missouri to the Missouri Senate. Although voted due pass, this resolution did not come up for debate and vote. She reported that legislation drafted by the Eminent Domain Committee to reconcile the statute and Supreme Court Rule regarding condemnation filing deadlines passed and Elder Law Committee drafted legislation pertaining to the “right of sepulcher” was stalled. The Probate and Trust Committee did not draft, but played a key role in developing, legislation addressing the potential invalidation of beneficiary deeds, as a result of the Pippin v. Pippin decision. The ADR Committee and Sen.
Koster helped to negotiate important changes to a “right to repair” bill, removing mandatory pre- lawsuit mediation requirements. She indicated that further tort reform legislation is expected in 2006 and that the Bar’s Executive Committee opposed 30 bills during the 2005 session.

4. Appointments:

A. Fee Dispute Resolution Committee

Mr. Whisler reported that the terms of Mr. James Condry of Springfield and Ms. Betty Preston of Chillicothe are expiring. A motion was made and seconded to reappoint both for another term. The motion was approved.

B. ABA Delegates

Mr. Whisler reported that the term of James W. Tippin as an ABA delegate is expiring and that he is eligible for reappointment. It was moved, seconded to reappoint Mr. Tippin. The motion was approved.

Mr. Whisler reported that the term of Bunky Wright is expiring and Mr. John W. Briscoe is recommended to succeed him. It was moved and seconded to appoint Mr. Briscoe to the House of Delegates. The motion was approved.

Mr. Whisler reported that the Young Lawyers Section Council will select a delegate to succeed Mr. Aaron W. Farber, whose term is expiring.

5. Committee Reports:

A. Client Security Fund

Mr. McConnell reported that the Client Security Fund Committee would be considering in-depth a number of issues related to Missouri’s fund. He reported that a recent story in the Kansas City Star was critical of the program. He indicated that the committee will draft a trust account notification rule for consideration by the Board in July. In addition, the committee will consider issues related to the notification of clients when insurance companies send settlements to lawyers, the maximum allowance and current payout formula used for claims, and the use of audits. He indicated that Larry Tucker has offered the assistance of the Professionalism Committee as they explore these issues. He reported that the committee would provide a complete report in July.

B. Multijurisdictional Practice Committee

Jennifer Gille Bacon reported that the Multijurisdictional Practice Committee considered changing the MJP rule recently approved by the Supreme Court of Missouri to specifically include rules on lawyer advertising. After consultation with other interested parties and advice from constitutional law professors, the committee concluded that it was best not to specifically include lawyer advertising within the MJP rule. She indicated that a comment within the current rule specifically states that the MJP rule does not authorize advertising and indicates that lawyers should refer to Rule 7.1 – 7.5 on issues of advertising. She reported that with this report, the committee’s work is complete. Tom Casey questioned whether a member of the Lawyer Advertising Committee had been included on the conference call. Ms. Bacon indicated that she may not have included a member of that committee, but mainly focused on scheduling a call when the constitutional law professors were available.

C. Administrative Law Committee

Kent Brown reported that the Administrative Law Committee has been asked to investigate whether there is a need to establish a central panel like the Administrative Hearing Commission to hear administrative matters. He reported that a subcommittee has been established and he is the chair. He indicated that a similar investigation had been initiated a number of years ago. They will begin gathering information, reviewing legislation proposed this year and, if necessary, draft model legislation for the 2006 session.

D. Annual Meeting

Keith Birkes reported that planning is well underway for the Annual Meeting. He reported that Alan Gallas is chairing the committee. The theme will relate to the impartiality of the judiciary. He reported that three plenary programs are planned, along with CLE track programs and social events. He reminded the Board that there is no funding for the Judicial Conference in the Judiciary budget, but that Judge Wolff, a committee member and the incoming Chief Justice, is encouraging circuit courts to use money from their circuits to attend. He reported that it is shaping up to be an excellent meeting and encouraged all Board members to attend.

E. Civil Practice Committee

Mr. Steele reported that the committee discussed an obscure provision in RSMo.
492.300 and Rule 57.03(b)(5) regarding taking notice of an adverse party during depositions. Mr. Steele moved and it was seconded that the Civil Practice Committee further explore these provisions and the potential problems that they may cause to the unwary and recommend any changes to the Board. The motion was approved. Mr. Blanton reported that as a member of the Civil Rules Committee, he would ask that the matter be added to their agenda.

F. Gender and Justice Committee

Mr. Johnston moved and it was seconded and approved that changes on pages 7 and 8 of the Courtroom Conduct Handbook for Gender-Neutral Courtroom Procedures be approved in the revised form, so it can be printed and distributed at the judicial education programs in June and July. The changes would add “sexual orientation” to the list of bias prohibitions contained in several paragraphs on both pages, and it corrects Canon 3B.

He also reported that the committee has plans to follow up on its 1992 survey and will be identifying professionals in the area of statistics who could advise the them. The committee also wants to consider expanding the scope of the committee. The current scope is very limited “to advise the Supreme Court on the implementation and progress of the 1992 survey.”

G. Lawyer Assistance Committee

Tom Casey reported that Jim Howard had retired and introduced The Missouri Bar’s new Director of Missouri Lawyers’ Assistance Programs (MOLAP) Jim Brady.

H. Legal Education

The committee plans to explore developing a policy related to qualifications for lawyers conducting CLE programs and will report at the July meeting.

I. Probate and Trust Committee

The committee plans to recommend technical corrections to the Uniform Trust Code in the fall.

J. Property Law

The committee will bring two uniform acts before the Board. One is on electronic reporting and the other is on residential mortgage satisfaction. Proposed legislation will be presented at the summer meeting.

K. YLS Committee Report

Mr. Srivastava moved, and it was seconded that two amendments be made to the YLS bylaws. The first limits the number of meetings that a counsel member can attend by telephone to one. The second amendment would replace the nouns and pronouns in the bylaws, so they are gender neutral. The amendments were approved.

L. Lawyers Advertising

Tom Casey reported that the advertising proposals were forwarded to OCDC for comment. OCDC made four principal recommendations/criticisms. The Advertising Committee subsequently met, considered and adopted all four recommendations of OCDC, and those changes have been incorporated into the most recent draft of the advertising rules. He reported that the final draft was now appropriate for approval by the Board and ready to be forwarded to the Supreme Court. He moved and it was seconded that the board approve this most recent and, hopefully, last amendment to the advertising rules. The motion was approved. He further moved and it was seconded that the approved proposal be transmitted forthwith to the Supreme Court of Missouri. This motion was also approved.

M. Committee on Tort Review

Mr. Igoe requested clarification regarding whether the Executive Committee communicated opposition to HB 628. Catherine Barrie stated that the opposition was communicated.

N. Committee Scheduling Suggestion

Mr. Lang suggested that we may want to consider ways to schedule committee meetings so they do not conflict with one another and so committee members can attend multiple meetings. An example cited included scheduling one-hour CLE program meetings, rather than meetings that take up the entire morning.

6. Officers Report:

A. The Missouri Bar Dues Protest and Refund Policy

Mr. Johnston reviewed proposed changes to the Missouri Bar Protest and Dues Refund Procedure, noting that the issues prompting the changes came up during Professor Abrams’ study of the proper role of a unified bar in the tort reform debate. The changes were recommended to minimize potential constitutional challenges that could result in a lawsuit. It was moved and seconded that the amended procedure be adopted. The motion was approved.

Mr. Corrigan asked the Board to formally thank Professor Abrams for his work and advice to the Bar.

B. Law Student Representation Rule

Mr. Whisler reported that the Supreme Court of Missouri has asked the Board to consider and approve the adoption of an amendment to Rule 13, pertaining to law student clinical practice. In particular, the request is to allow student representation of clients in all of the law school clinical programs within the state. It was moved and seconded that the amended Rule 13 be adopted. The motion was approved.

C. Executive Director’s Report

Mr. Birkes reported that the upcoming July meeting of the Board of Governors will be at the Country Club Hotel at Lake of the Ozarks. He reported that the Solo and Small Firm Conference is scheduled for June 9-11 and it is expected to be a sellout. He reported that this conference will be moved to Tan Tara in 2006. He reported that Linda Oligschlaeger was acknowledged by the American Bar Association Technology group for the amazing contributions she has made to technology through the Solo and Small Firm Conference. She received an award for her efforts and the conference, which is a model for the nation.

Mr. Birkes reported that Jack Wax will be acknowledged at the August American Bar Association meeting with a community education award for a program that he developed to share our public information brochures and other resources with librarians across the state of Missouri. The award will be presented at the luncheon of bar executives.

D. Vice-President’s Report.

Mr. Baird thanked the Board for moving the 2007 meeting to Springfield and acknowledged the work of the bar staff to minimize the impact of the penalty related to moving the meeting from Tan Tara.

E. President-Elect’s Report.

Mr. Copeland reported that Mr. Whisler has appointed him to chair a new committee to deal with a crisis in the public defender system. The crisis resulted from a lack of money over the past 5 years, limiting the ability of the system to add adequate staff. With no additional funding available from the Legislature this year, this committee will be looking at ways to deal with the current crisis. A major component will be the development of a volunteer system, which will include an educational component and incentives for lawyers willing to volunteer to handle some of the cases. In addition, the committee will consider ways to position the public defender system within the legislative process to receive additional funding dollars when the state’s financial position improves. He reported that the Public Defender’s Office has identified a grouping of 10,000 traffic cases where volunteer help would be used; cases that might result in jail time. The effort will also involve the YLS.

He also reminded members that the Midyear Meeting will be in Florida and encouraged efforts to begin promoting the meeting now.

F. President’s Report

(1) Commission on the Impartiality of the Judiciary

Mr. Whisler reported that the Commission on the Independence of the Judiciary held its second meeting this Monday under the co-leadership of Larry Ward and Hon. Ann Covington. At the meeting in July, written proposals will be provided detailing all aspects related to how, when and why The Missouri Bar should respond in support of the Judiciary.

(2) Funding for the Judiciary

Mr. Whisler thanked everyone who contacted legislators during the budget process and Catherine Barrie and Stephen Murrell for their work in preserving funding for the judiciary in 2005.

There being no further business, the meeting was adjourned.

Respectfully submitted,

Keith A. Birkes, Secretary