State Bar





I.  Call to Order

The meeting was called to order at 2:00 p.m. on Friday, September 11, 2009, at the Minnesota CLE Conference Center. President Leo Brisbois presided, with Secretary Robert Enger recording. The Roll Call is attached.


II.  President’s Report

Mr. Brisbois noted a number of recent developments of interest:


Mr. Brisbois called on Supreme Court Justice Lorie Gildea, who announced an October 27 event commemorating establishment of the Commission on Gender Fairness in the Courts.  The event will feature a luncheon address by Judge Harriet Lansing of the Minnesota Court of Appeals, to be followed by a CLE seminar.  Area law schools are co-sponsoring a writing competition in conjunction with the event.


Mr. Brisbois noted further that in July a number of processed dues statements, including individual and law firm data, were lost.  MSBA responded promptly to safeguard the data, notifying those affected, and implemented new procedures to prevent future losses and place MSBA in compliance with new regulations governing data management, the so-called “Red Flags” rule.


In closing, Mr. Brisbois acknowledged staff members Nancy Mischel and Denise Plachecki for their work acting as co-executive directors in Tim Groshens’ absence. He then led the Assembly in a moment of silence to commemorate those lost on September 11, 2001.


III.  Executive Director’s Report

Acting Executive Director Nancy Mischel thanked the officers and the Assembly for their patience and support in Tim Groshens’ absence, as well as for the opportunity to serve. She highlighted two items from the staff’s written report, the State Board of Legal Certification, which had been scheduled to meet on this date to consider the MSBA’s application to certify specialists in criminal law, had deferred its meeting pending further notice and that the MSBA has launched a new, redesigned practicelaw.org.


IV.  Treasurer’s Report

Treasurer Aaron Biber announced that 92.1% of member dues expected had been received to date, which is somewhat ahead of historical performance.  The MSBA added 426 new members in 2008-09, and in this fiscal year new member enrollment exceeds numbers achieved at this time last year by 118.  So far no loss of membership attributable to the downturn in the economy has been perceived.  He noted that the district bar associations are working very hard to manage their budgets and retain members, such that the MSBA remains a very vibrant organization.


Mr. Biber then called on Rob Koch of the Olsen Thielen to deliver the audit report and announced that the Operations Committee recommends acceptance of report.  Mr. Koch reported that the auditors are offering an unqualified opinion.  He noted a number of changes in this year’s report, among them MCLE is now a subsidiary of MSBA due to its incorporation and revenue this year is down slightly due to investment performance but expenses are also down; MSBA generally performed better this year than last, including reducing the deficit to bring reserves in line with the target.


Mr. Biber affirmed that MSBA has done well in the past year, reducing reserves to target levels and reducing expenses.  He reiterated the Operations Committee recommendation that the audit report be approved as submitted.  The motion carried.


V.  Consent Calendar

A.       Approval of minutes of the June 26, 2009 meeting

B.       Action to waive the policy limiting membership on the Legislative Committee to 20

C.       Action to approve Assembly Committee appointments

Mr. Brisbois presented the Consent Calendar.  A motion was made, seconded and carried to approve the Consent Calendar.


VI.  Legislative Committee

Mr. Brisbois introduced Thad Lightfoot, Vice Chair of the Legislative Committee, who presented the Committee’s recommendation that the MSBA, as requested by the ABA, take a position requesting the Federal Trade Commission and Congress to clarify that the Commission’s Red Flags Rule imposing requirements on creditors relating to identity theft is not applicable to lawyers while they are providing legal services to clients.  Mr. Lightfoot clarified that the FTC rule is intended to curb identity theft and that implementation of the rule is now deferred pending clarification.  The recommendation was seconded.


Fred Finch reported that the ABA adopted a resolution on this matter in August and filed suit in September against the FTC, charging that the FTC interpretation of the Red Flags Rule is wrong.  He noted that the MSBA resolution would support ABA’s legal position.  Mr. Brisbois interjected that the ABA is particularly interested in having MSBA support on this issue since three Minnesota legislators sit on committees that will consider this issue.  The recommendation carried unanimously.


VII.  Elections & Appointments Committee.

Judge George Perez delivered the report and recommendations of the Committee. Judge Perez noted that the Committee had presented three action items which it now requests be grouped as two for action, due to the limited number of applications the Committee received for open positions and the lack of time for the Committee to meet with applicants prior to the Assembly meeting.


First, with respect to one of the two openings on the Lawyers Professional Responsibility Board (LPRB), the Committee recommends nomination of incumbent Stuart Williams.  The recommendation was seconded and carried.


With respect to the second opening on the LPRB, the three trustee positions on LawPAC, and the opening on the Board of Legal Certification the Committee recommends that the Assembly delegate authority to the Council to fill these openings at its meeting on October 23, following receipt of recommendations by the committee.  The recommendation was seconded.


Judge Perez explained that only one application had been received for the LawPAC positions and that the Committee had had no time to interview applicants.  He further encouraged Assembly members to express interest in these openings as LawPAC has been reconstituted to enable better representation of MSBA interests at the legislature.


Regarding the remaining openings on the state boards, Judge Perez explained that since these appointments are to be effective January 1 it would be untimely to defer action to the December Assembly meeting.


A motion was made and seconded to amend the motion to reduce the number of LawPAC trustee positions in question from three to two on which action would be deferred, and to recommend appointment of the sole applicant, Brad Thorsen, as a LawPAC trustee.  Judge Perez advised that the Committee had considered this question but decided to defer recommendation pending the opportunity to review and interview all applicants for the positions.  The motion to amend and carried.


The main motion as amended carried.


VIII.  Governance Committee

Fred Finch delivered the report of the Committee, noting that in the coming year the Committee intends to consider bylaws and policies regarding the filing of amicus briefs by the MSBA and its sections.  The Diversity Committee has presented a proposed amendment to Bylaw 9.3.4 regarding election of an officer at-large, calling for the Assembly to consider other diversity factors in addition to race and gender.  Mr. Finch invited requests from sections for review of proposed section bylaw amendments and indicated that the Committee will be working with the New Lawyers Section to review its bylaws. 


IX.  General Policy Committee

Mary Ward presented the report and recommendations of the General Policy Committee.  She advised that the committee recommends approval of the Civic Education Committee report and recommendation for establishment of an annual Citizen Lawyer Award. The recommendation was seconded.  Mr. Brisbois called on Treasurer Aaron Biber to comment on the Civic Education Committee’s request for $600 to fund the award in this fiscal year.  Mr. Biber reported that the Operations Committee approved the appropriation.


A questioner inquired how the proposed award would be distinguished from the David Graven Award now presented annually for public service.  Replying on behalf of the Civic Education Committee, staff member Brian Bell advised that the Citizen Lawyer Award would specifically honor efforts to educate the public about civics and government whereas the Graven Award is presented for public service more broadly defined.  The recommendation was approved.


X.  Operations Committee

Treasurer Aaron Biber reported that the Committee plans to draft a banking procedures policy this year for inclusion in the Bar Leader Handbook and publication online.  The Committee will also take a look at section financial reserve policies.  He advised that the Committee has received a report on MSBA investments indicating the accounts have performed well since the beginning of the fiscal year in July. 


Mr. Biber advised that the Committee had reviewed the report and recommendation of Publications Committee regarding executing a letter of intent to contract for printing services with RR Donnelly.  The Operations Committee recommends executing a letter of intent to negotiate a contract on terms and for a term to be negotiated, not expected to exceed two years.  Since the Council has authority to contract on behalf of the MSBA, the Council will meet and consider the matter and, if a contract is approved, will report back to the Assembly.


XI.  Adjournment

The meeting was adjourned at 3:30 PM.


Respectfully submitted,



Robert Enger