Board of Governors and
2002-2003 Bar Year
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Friday, June 20, 2003
1. Call to Order
President Jon Duckstad gaveled the meeting to order at 9:15 a.m. and welcomed the delegates. He extended thanks to all for their contributions to the MSBA and to the profession.
Delegates observed a moment of silence in memory of members of the MSBA who died in the past year.
3. State of the Judiciary Address
President Duckstad introduced Chief Justice Kathleen Blatz who delivered the State of the Judiciary address.
Chief Justice Blatz noted that it was always a pleasure to attend the Convention and voiced regret that more members of the bar don't turn out to take advantage of this opportunity. She thanked the MSBA for bringing members of the bar together and urged that attendees encourage their colleagues to attend the Convention and to bring others with them next year.
Chief Justice Blatz observed that we have a strong judiciary because of the Court's partnership with the Bar. She noted that this year is the 20th anniversary of the Court of Appeals and the 10th anniversary of the Racial Fairness Initiative -- both of which were accomplished through joint Bar-Court activity. She recognized MSBA officers and other MSBA representatives for their help in support of funding for the courts and legal aid to the disadvantaged at the Legislature this year. She acknowledged also the contributions of members of the Bar who contacted their individual legislators and of lawyer-legislators who offered leadership on the Court's behalf.
Enumerating some of the accomplishments of the Court in the year just ended, Chief Justice Blatz singled out several areas for special mention: Children and Families; Child Protection; Childrens' Justice Initiative; Technology, specifically implementation of the Minnesota Court Information System (MnCIS); efforts to improve public opinion of the courts; and efforts to maintain access to justice.
Chief Justice Blatz observed that continuing economic weakness has increased the courts' workload over the last ten years. Judges, she noted, don't have enough time to handle their current caseloads.
Reflecting on the decision of the U.S. Supreme Court in Republican Party of Minnesota v. White, the Chief Justice expressed concern that our judicial elections will become increasingly political and the need to work together to preserve a nonpartisan judiciary.
Concluding her remarks, Chief Justice Blatz stressed that despite difficulties, the judicial system remains strong, and urged that the Bar and the Court need to continue to partner to keep the system strong.
4. President's Award
President Duckstad acknowledged that many members contribute very much to the MSBA and to improve the administration of justice. He announced that this year the President's Award is presented to the Task Force on the ABA Model Rules of Professional Conduct, chaired by William J. Wernz. He thanked this group for their hard work over the past year.
5. Legislative Report
President Duckstad introduced Lloyd Grooms, MSBA lobbyist, who delivered his report on the just-concluded legislative session. Mr. Grooms observed that the 2003 session was a year of change at the Legislature, beginning with the election of the new governor, Tim Pawlenty and significant changes in legislative leadership.
While most legislative effort this Session was concentrated on addressing the problems of the deficit, several items of interest to the Bar were passed. They included:
" Legislation promoted by the Real Property Section was carried into law as Chapter 5.
" The Uniform Guardianship Act promoted by Probate & Trust Law Section was passed, while a second initiative regarding trusts has been held over to the 2004 Session.
" Changes were made to Articles 3 and 4 of the Uniform Commercial Code.
" Changes to the Minnesota Cooperative Association Act to promote agricultural cooperatives.
" Changes were incorporated in the Uniform Health and Human Service Act, including changes regarding medical assistance and adjustments to joint and several liability to increase the percentage of liability that is the threshold for shouldering liability.
The Legislature returns to St. Paul in February. A number of bills passed this Session, including the conceal-and-carry legislation, are expected to be back in the next Session for reconsideration of some provisions.
Grooms thanked lawyers who came to the Capitol to support MSBA and the Court's legislative effort and he acknowledged their effectiveness in support of the legislative program.
6. Prize Winners
President Duckstad then announced the winners of Convention door prizes and thanked all who contributed prizes.
7. Passing of the Gavel.
President Duckstad expressed sincere thanks to President-elect Baillie for his contributions and cooperation over the year and acknowledged the breadth and depth of Baillie's preparation to assume the leadership of the MSBA. He then asked President-elect Baillie to come forward to accept the gavel. President-elect Baillie accepted the gavel with thanks, noting that Jon Duckstad has upheld MSBA's tradition of strong, outstanding leadership. He noted that Jon has put in tremendous amounts of time traveling around the state to visit district bars, going to Washington to meet with members of Congress, and working the state Capitol on behalf of MSBA and Court legislative programs. Acknowledging that Duckstad's style is to place the focus on other people as a way to encourage others to do their best, Baillie observed that Jon has shown us what outstanding and interesting people are among us. He thanked Jon for a terrific year and for being an outstanding MSBA leader. He then introduced a slide show reprising Duckstad's year as MSBA president and presented a plaque to President Duckstad with appreciation from the lawyers of Minnesota.
Duckstad responded that it was an honor and a privilege to serve the Bar Association. He urged that members of the Association should know how important each of them is since it's the members who make thing go.
President Baillie then offered remarks regarding his plans for the coming year. He noted that he has been inspired by the tradition of public and community service in his law firm, Fredrikson and Byron, and expressed his appreciation to the firm for their inspiration and support. He also acknowledged the high standard set by past presidents and expressed his gratitude for the opportunity to serve. Stating he is proud to be a lawyer, he said he wants to use the opportunity of his presidency to inspire and remind lawyers of their reasons to be proud. In addition, he called on lawyers to support legal aid programs and increase their commitment to pro bono. Litigators and nonlitigators can help provide services to individuals, nonprofits and small businesses. Mr. Baillie also highlighted the need to strengthen the Bar's legislative program both at state and national level to ensure ongoing support for the courts and legal system. He urged the MSBA to give priority to addressing the decline in the Association's civic penetration - a decline in both membership and participation in the MSBA, through efforts to improve services to members and to strengthen their connections to the Association.
7. Secretary's Report
Secretary Susan Holden reported that the Districts had certified their delegates. A quorum was present and the Rules and Calendar Committee had adopted rules for the meeting. She then presented the rules for business of the Assembly.
8. Action on the Recommendation of the Board of Governors to increase dues by $5.00 in each of the next three years.
David Stowman reported that this recommendation originated with the Operations Committee, based on work the Committee began in the fall of 2002. He noted that the objectives of the Operations Committee were to increase the Association's reserves, hold dues increases to a minimum, and maintain critical programs. Due to the weak performance of investments, he observed, the goal of increasing reserves has not been achieved, but the reserves as a percentage of the budget have not decreased. He reported further on highlights of the budget for the coming year including a temporary, part-time position to coordinate the pro bono program and changing the attorney referral service from a staffed service to an online service.
A motion was made and seconded to accept the recommendation. The motion carried.
9. Action on Report and Recommendations of the Task Force on ABA Model Rules of Professional Conduct
President Baillie introduced Bill Wernz, chair of the Task Force on the ABA Model Rules of Professional Conduct, to report on the work of the Task Force.
Wernz reported that the Task Force was appointed by Jon Duckstad beginning in the autumn of 2002 and undertook the first systematic review and revision of the Rules of Professional Conduct since the mid-1980s. He indicated that the work of the ABA Ethics 2000 Commission, the ABA Task Force on Multijurisdictional Practice, and that of a new task force on Corporate Practices (due to report in August 2003) provided impetus for the review, but that only the reports and recommendations of the first two bodies were considered by the MSBA Task Force. The Task Force met monthly as a group and members also served on subcommittees which met separately to consider subparts of the Rules. In all its deliberations, the Task Force sought to ensure that the process remained public and publicized its work on the Web so it would be available for public input.
Wernz identified three guiding principles of the work of the Task Force: 1) the ABA Model Rules should be the baseline for amendments, rather than the current Minnesota Rules of Professional Conduct; 2) the ABA Model Rules should be adopted in Minnesota except for variations that were supported by strong precedent or reason for variation; 3) the Comments to the Rules should be adopted by the Minnesota Supreme Court not as rules but as guidelines for interpretation.
He observed that multiple changes are proposed, but few are marquee changes. He then highlighted a number of areas in which changes or retention of a rule were proposed by the Task Force.
A motion was made and seconded to accept the report and recommendations of the Task Force on the ABA Model Rules and to petition the Minnesota Supreme Court to adopt the recommendations as the Minnesota Rules of Professional Conduct.
A motion was made and seconded to delete Rules 3.8(e) from the proposed rules. The County Attorneys Association urged that the rule belongs in the Rules of Criminal Procedure and it was noted that the U.S. Attorneys Office has raised questions about the constitutionality and appropriateness of this rule. It was also noted that the Office of Lawyers Professional Responsibility had reported that the constitutionality of the rule was in question and urged that reconsideration is in order.
Ken Jorgensen, Director of the Office of Lawyers Professional Responsibility, agreed that the rule deserves further study and pointed out that a number of states that adopted this rule later repealed it. He urged that the rule be withdrawn pending further consideration.
A representative of the Minnesota Association of Criminal Defense Lawyers spoke in support of the proposed rule. He noted that only one U.S. District Court (Colorado) saw there to be a supremacy clause violation involved in Rule 3.8(e) and pointed out that the ABA Ethics 2000 Commission had discussed this matter extensively before they recommended it. He urged that this rule has been adequately considered and should be adopted.
Wernz observed that the issues raised are the key issues to be considered and indicated that the Task Force had discussed these issues extensively and the votes were close.
The motion to delete Rule 3.8(e) was then voted and the chair called for a division. The motion failed.
A motion was made to amend the last clause of Rule 3.6(a) to read "… and will have a substantial likelihood of materially prejudicing a jury trial in a pending criminal matter. The motion was agreed to as a friendly amendment to the main motion.
A motion was made and seconded to amend Rule 3.8(f) by adopting the rule recommended by the Ethics 2000 Commission instead of the text of the current Minnesota rule that has been recommended by the Task Force. At issue was whether a prosecutor should be subject to discipline for the actions of persons beyond the direct control of the prosecutor. It was alleged that while prosecutors do not now have direct control of all those who may be involved in a prosecution, they can have control if they want it. The Ethics 2000 Commission, it was argued, saw the potential for this and saw merit in placing responsibility on the prosecutor.
Wernz pointed out that the Task Force decided that this rule should not be adopted since lawyers should not be subject to discipline for actions of those over whom they have no direct control.
A representative of the County Attorneys Association argued that prosecutors do not have control over police or other persons assisting the prosecutor as referenced in the rule. He argued that the ABA Model Rule could unfairly subject the prosecutor to discipline for remarks of victims and others whom the prosecutor cannot control.
The motion failed.
A motion was made and seconded that Rule 4.1(b) and associated Comment  not be adopted as they are unnecessary.
Mr. Jorgensen argued that the proposed rule is unnecessary, pointing out that the rule is not a new one and Rule 1.2(d) already prohibits lawyers from assisting in perpetration of a fraud. It was further noted that a separate rule already permits lawyers to report when they are unwittingly used by a client to perpetrate a fraud. While the proposed rule would make such reporting mandatory, it was argued that the current rule permitting lawyers to report was adequate to address the matter.
Chair Wernz acknowledged that the question is close and noted that the Task Force voted for the rule consistent with its decision to support ABA Model Rules absent compelling reasons to do otherwise. He indicated he was not aware of any cases that would require it.
The motion to delete Rule 4.1(b) and Comment  carried.
A motion was made and seconded to amend proposed Rule 5.4(a)(4) as follows: "A lawyer or law firm shall not share legal fees with a nonlawyer, except that subject to full disclosure and court approval a lawyer may share court-awarded legal fees with a nonprofit organization qualified legal services program as defined by law that employed, retained, or recommended employment of the lawyer in the matter."
It was argued that the rule as submitted by the Task Force would create opportunity for mischief in class action areas. If the proposed amendments are not passed, it was argued, the rule would permit lawyers to set up nonprofit agencies not limited in their ability to solicit.
A representative of the Task Force voiced concern that the proposed amendment would impede sharing of funds with legitimate nonprofits, e.g., the NAACP Legal Defense Fund, that do not meet the definition of legal services organization but are public service organizations. He argued that the proposed amendment is overbroad in excluding nonprofits other than legal services organizations.
While it was acknowledged that the proposed amendment was under inclusive, it was argued that this would be preferable to a rule that was over inclusive.
A motion was then made and seconded to delete the phrase "qualified legal services program as defined by law" and reinstate the term "nonprofit organization" in its stead. Chair Wernz indicated it was his impression that this amendment to the amendment would work to address the inclusivity issue, given that provisions for full disclosure and court approval would limit sharing of funds to appropriate entities.
The motion was accepted as a friendly amendment. The question was called and the main motion, as amended, carried.
A motion was made to condition the General Assembly's approval of the main motion on agreement to refer the result back to the Task Force for "housekeeping" issues to renumber and format the Rules prior to submitting them to the Court. The motion was agreed to as a friendly amendment.
A motion was then made and seconded to amend proposed Rule 7.4(d), regarding communication of fields of practice and specialization, by removing the words "certified as" from the rule and from paragraph 3 of the associated Comment.
Proponents argued that the current rules, which require that specialists be certified in order to identify themselves as specialists, serve the public interest and that the proposed rules would eliminate that restriction. The general public, it was argued, perceives the word "specialist" as meaning one that has a special qualification or certification, and that in the legal profession, where general education is the norm, to claim specialist status without certification is misleading. It was alleged that the rule as proposed would undercut our certification programs and standards for specialty training.
Concerns were raised that the proposed amendment would raise constitutional issues by prohibiting use of the word "specialist" by attorneys practicing in areas where no specialty certification was available. It was noted further that Rule 7.1, covering fraudulent misrepresentation, would check abuse of the term "specialist." Others argued that without the clear standard of certification to identify specialist, there would be no clear criterion for limiting use of the term. Finally, it was observed that Minnesota lawyers will be at a disadvantage if lawyers in other states are permitted to call themselves specialists absent certification and we cannot.
The question was called and the motion failed.
The question was then called on the main motion as amended. The motion carried.
10. New Business
There was no new business.
The meeting adjourned at 12:00 noon.
Susan M. Holden
Board of Governors
June 19, 2003
Pursuant to notice, a regular meeting of the Board of Governors of the Minnesota State Bar Association was held on Thursday, June 19, 2003 at the Hyatt Regency in Minneapolis. President Jon Duckstad called the meeting to order at 2:00 p.m.
Minnesota State Bar Foundation
President Duckstad first convened the Board of Governors as the membership of the Minnesota State Bar Foundation for the Foundation's annual meeting. President Duckstad recognized James P. Barone, Foundation president, who presented the annual report of the Foundation.
President Barone singled out three retiring members of the Foundation Board for special recognition: Hon. Rosanne Nathanson, Patrick Leary, and Vice President/Treasurer Herman Ratelle. He also noted that Amy Yanni had resigned after one year due to a move out of the area.
President Barone then conducted the election of members to the six openings on the Board. Six persons expressed interest: Dennis Simpson for a two-year term; and Linda Barbe, Juan Hoyos, Hon. Joanne Smith, Christa Van Gundy, and Lloyd Zimmerman for three-year terms. President Barone called for additional nominations and hearing none, declared the nominations closed.
A motion was made and seconded to elect the slate. The motion carried.
President Barone then returned the gavel to President Jon Duckstad, who convened the members as the MSBA Board of Governors.
1.0 Routine Business
1.01 Roll Call
See attached list.
1.02 Treasurer's Report
Treasurer David Stowman summarized the report that had been distributed. Mr. Stowman moved approval of report subject to audit. The motion was seconded and carried.
1.03 President's Report
President Duckstad recognized 21 members of the Board who completed their terms of service this year. Each outgoing member was presented with a plaque in recognition of their service.
2.0 Recognition of Senior Counselors
President Duckstad noted that 35 members who joined the bar in 1953 would be recognized as senior counselors at a special reception at 5:00 p.m.
3.0 Action Calendar
3.01 Action on a resolution approving the actions taken by members of the Board of Governors attending the scheduled April 26 Board of Governors meeting
President Duckstad noted that since no quorum was present at the April Board meeting, the actions of that meeting require approval. A motion was made and seconded to approve the actions taken by members of the Board of Governors at the April 26 meeting.
A motion was made from the floor to separate consideration of item 3.03, "Action on the recommendation of the Executive Committee to amend Bylaw 1.41 related to classes of membership," from the proceedings covered by the main motion. The motion to amend was seconded and carried.
The Board then approved the amended motion.
A motion was made and seconded to adopt item 3.03 from the April Board agenda. The chair noted that the proposed change in Bylaw 1.41 would require a 2/3 vote
Members discussed the proposal noting that this issue was originally raised by the Membership Committee to improve the ability of the Association to attract and retain members and that the intent was to enable the Executive Committee to take action on a temporary, trial basis over not more than two years before bringing an alternate dues structure to the Board for approval.
A motion was made to amend the motion to apply only to dues for government lawyers. The motion was seconded. Following discussion, the motion to amend failed.
The chair then called for a vote on the main motion, which failed to achieve a 2/3 vote.
3.02 Election of officers of the Association for fiscal year 2003-04
A motion was made and seconded to elect the slate of officers nominated to lead the MSBA in 2003-04: David Stowman, President-elect; Susan Holden, Treasurer; Patrick J. Kelly, Secretary. The motion carried.
Election of at-large members to the Executive Committee
A motion was made and seconded to elect as at-large members to the MSBA Executive Committee: Kenneth White (Outstate); Lorie Gildea (Hennepin County); Dan O'Connell (Ramsey County). The motion carried.
3.03 Action on the recommendations of the Real Property Law Section on a proposed change to the Real Property Title Standards
Larry Brynestad, chair of the Section's Title Standards Committee, presented the proposed changes on behalf of the Real Property Section. The proposal calls for changes to Title Standard 107, which covers attorney liens, and is offered in response to recent changes in the statutes. A motion was made and seconded to ratify the proposed amendment to Title Standard 107. The motion carried.
3.04 Action on the request to create a military affairs committee
President Duckstad presented a proposal for establishment of a Military Affairs Committee and moved that such a committee be created. The motion was seconded and carried.
3.05 Action on the recommendation of the Insurance for Members Committee to change long-term care insurance providers
President Duckstad recognized Michelle Mack, who spoke on behalf of the Insurance for Members Committee. A motion was made and seconded to change MSBA's long-term care insurance provider from Newman Financial to Marsh Financial. The motion carried.
3.06 Action on the recommendation of the Insurance for Members Committee to create a new group health insurance program
A motion was made and seconded to approve the new group health insurance program outlined in the materials and recommended by the Insurance for Members Committee. The motion carried.
3.07 Action on the request to create an animal law committee
President Duckstad recognized Barbara Gislason, who presented a proposal for creation of an Animal Law Committee. A motion was made and seconded to approve the creation of an Animal Law Committee as presented.
The Board discussed the level of interest in animal law among members and whether the committee should be part of an existing section. The motion was voted and the chair, in doubt as to the result, called for a division. The motion carried 24-21.
4.0 Consent Calendar
4.01 Action on the recommendation of the President-Elect regarding the 2003-04 Master Calendar
4.02 Action to approve the recommendations of the President-Elect regarding 2003-04 committees
4.03 Action to approve amendments to the Bylaws of the Elder Law Section
4.04 Action to approve amendments to the Bylaws of the Student Section
President Duckstad presented the items on the Consent Calendar and moved their approval. The motion was seconded and carried.
5.0 Report Calendar
5.01 Nominations and Elections
The chair called members' attention to items on the Report Calendar and urged members to visit exhibits at the trade fair during the Convention.
6.0 New Business
There was no new business presented.
The meeting adjourned at 3:15 p.m.
Susan M. Holden
Board of Governors
April 26, 2003
Pursuant to notice, a regular meeting of the Board of Governors of the Minnesota State Bar Association was held on Saturday, April 26, 2003 at the Minnesota CLE Conference Center in Minneapolis. President Jon Duckstad called the meeting to order at 9:00 a.m.
1. Presentation of Awards
President-Elect Jim Baillie presented Bernard P. Becker Awards to Larry Nicol, managing attorney at Southern Minnesota Regional Legal Services in Mankato, Mescal Urich, a legal secretary at the Legal Aid Society of Minneapolis, and Douglas Kluver, a May 2003 graduate of the University of Minnesota Law School.
Mac Lefevre presented the David Graven Public Service Award to Leonard Lindquist of Lindquist & Vennum.
2. Routine Business
2.01 Roll Call
See attached sheet.
2.02 Approval of Minutes of December 2002 meeting
A motion was made and seconded to approve the minutes of the December 6, 2002 Board of Governors meeting. The motion carried.
2.03 Treasurer’s Report
Treasurer David Stowman presented the treasurer’s report and moved its adoption subject to audit. The motion carried.
2.04 President’s Report
President Jon Duckstad presented the president’s report. He announced that the Legal Education and Bar Admissions Committee will be focusing on the recommendations in the report of the ABA Commission on Multijurisdictional Practice in the coming months and is seeking additional members. He asked that anyone interested in serving on the committee contact the MSBA staff. He thanked all who are participating in this year’s Habitat for Humanity project in St. Paul and noted that the project is proceeding on schedule. He indicated that members of the Executive Committee are planning to attend as many annual district bar association meetings this spring as possible. He urged members to attend the annual convention and General Assembly June 18-20 in Minneapolis.
3. Action Calendar
3.01 Election of MSBA Representatives to Outside Boards
After duly opening and closing nominations, there being no additional nominations for any of the open positions, the following nominees were elected to the following outside boards:
a) Client Security Board: John Watson, Hennepin County
b) State Board of Continuing Legal Education: Judge Tanya Bransford, Hennepin County, and Richard Nelson, Hennepin County
c) Legal Services Advisory Committee: Sally Scoggin, Ramsey County
d) Bar Admissions Advisory Council: Leonardo Castro, Hennepin County, and Barbara D’Aquila, Hennepin County
e) Central Minnesota Legal Services: Tara Ulmaniec, Swift County
f) MSBA/ABA Delegates: Rebecca Anderson, Beltrami County, Teresa Jones, Hennepin County, and Mary Deutsch Schneider, Clay County
3.02 Action on the recommendations of: (a) the Operations Committee regarding the three-year plan, the 2003-04 budget for the General Fund, and a recommendation to the General Assembly for a dues increase; and (b) the MCLE Board of Directors regarding the 2003-04 budget for the MCLE Fund
David Stowman presented the recommendations of the Operations Committee as described in the committee report regarding the three-year plan, the 2003-04 budget for the General Fund, and a recommendation to the General Assembly for a dues increase of $5.00 per year in each year of the three-year plan, and moved adoption of the Operations Committee report. The motion was seconded and carried.
Bill Kuhlman presented the report of the MCLE Board of Directors regarding the 2003-04 budget for the MCLE Fund and moved adoption of the Board report. The motion was seconded and carried.
3.03 Action on the recommendation of the Executive Committee to amend Bylaw 1.41 related to classes of membership
Brad Thorsen presented the recommendation of the Executive Committee to amend Bylaw 1.41 to add the following new paragraph at the end of Section 1.41:
“(n) After a report to the Board of Governors, and subject to the Board’s review, the Executive Committee may asses dues in a manner different from paragraphs (a) through (m) for the purpose of evaluating member retention or recruitment strategies based upon a plan effective for no more than two fiscal years.”
It was noted that a motion to amend the bylaws requires a two-thirds vote in favor of the motion. It was moved and seconded that the proposed bylaw amendment be adopted. There was discussion on the motion. It was moved and seconded that the word “approval” be substituted for the word “review”. After further discussion, the motion was withdrawn by the author. It was moved and seconded that the main motion be tabled. The motion to table failed on a 6-24 vote. The main motion then carried on a 68% vote of 22 for and 10 opposed.
3.04 Update from the Women in the Legal Profession Committee regarding the SAGE program and action on the recommendation to create a recognition program
Jennie Clarke and Anne Johnson presented the resolution of the Women in the Legal Profession Committee recommending adoption of the SAGE Best Practices program and creation of a recognition program. It was moved and seconded that the resolution be adopted and a recognition program be created. The motion carried.
3.05 Action on the recommendation of the Insurance for Members Committee regarding the request of ReliaStar to adjust the pool level of the MSBA Group Term Life program
This item was withdrawn.
3.06 Action on the recommendation of the Executive Committee to support adequate funding for the Public Defense Board
This item was withdrawn.
3.07 Action on the recommendation of the Executive Committee to recommend adoption by the Board of Governors of a resolution opposing any change to the Minnesota Human Rights Act
Joan Bibelhausen presented the following resolution from the Diversity and Human Rights committees and recommended for approval by the Executive Committee:
“Resolved: that in an era when safeguarding Minnesotans’ civil rights has become more important than ever, the Legislature should not move to withdraw, or more narrowly define, any currently-protected class from the scope of the Minnesota Human Rights Act, as proposed in HF 341 and any companion bill.”
It was moved, seconded and carried that the resolution be adopted.
4. Consent Calendar
4.01 Action on the request of the following sections for a change in dues for 03/04 as outlined below
Administrative Law: Atty/Student--$20/$10
Appellate Practice: Atty/Student--$25/$10
Business Law: $15
Labor & Employment Law: Atty/Public/Student--$25/$15/$0
Public Utilities: Atty/Student--$30/$0
Tax Law: Atty/Student--$25/$0
The consent calendar was moved, seconded, and adopted.
5. Report Calendar
5.01 Report on the 2003 Convention
Brad Thorsen reported that plans for the 2003 convention are moving along well and urged members to register and attend. Dennis Archer, American Bar Association President-Elect, will give the keynote address.
5.02 Report on the Supreme Court’s Order regarding amended CLE Rules related to professional development
Joan Bibelhausen called Board members’ attention to the January 23, 2003 order of the Minnesota Supreme Court regarding the Rules of the Minnesota Board of Continuing Legal Education, a copy of which was included in the meeting materials. It was noted that copies of remarks made on behalf of the MSBA Life and the Law Committee before the Rules subcommittee of the state CLE board in March 2002 and a letter dated April 4, 2003 from Ronald Peterson, chair of the Minnesota CLE board, to the state CLE board were distributed at the meeting.
5.03 Report on the Legislative Session
Lloyd Grooms reported on the legislative session.
5.03 (a) Report on the Association Governance Task Force
Phyllis Karasov reported that the recently appointed Association Governance Task Force is meeting regularly. She and Richard Pemberton are the co-chairs. The 25 member task force will be reporting to the Board in March 2004.
5.04 Notice of election of three MSBA Executive Committee at-Large members
5.05 Notice of Minnesota State Bar Foundation elections
President Duckstad directed attention to the report calendar, which included notice of election for three Executive Committee at-large members and five directors of the Minnesota State Bar Foundation to take place at the June Board of Governors meeting were included in the meeting materials.
5.06 Draft 2003-04 Master Calendar
A draft master calendar for the 2003-04 bar year was distributed at the meeting.
6. New Business
There was no new business.
7. Future Meetings
Thursday June 19, 2003
Friday June 20, 2003—General Assembly
The meeting adjourned at 11:00 a.m.
David L. Stowman
Board of Governors
December 6, 2002
Pursuant to notice, a regular meeting of the Board of Governors of the Minnesota State Bar Association was held on Friday, December 6, 2002, at the St. Paul Hotel. President Jon Duckstad presided over the session, which began at 12:45 p.m. Secretary Susan Holden served as secretary.
1. Presentation Of Awards
President Duckstad presented two awards:
The Mary Alice Gooderl Community Service Award was presented to Ann Hale in recognition of her work with Kids Time Day Care Center.
The Elmer H. Wiblishauser Author's Award was presented to William Michael Jr. and Joseph Margulies for their February 2002 Bench & Bar article on "Trying Terrorists Before Military Commissions: Precedents and Perspectives."
2. Routine Business
2.01 Roll Call
See attached sheet.
2.02 Approval of minutes of the September 13, 2002 meeting
A motion was made and seconded to approve the minutes of the September 13, 2002 meeting. The motion carried.
2.03 Treasurer's Report
Treasurer David Stowman presented this report as it appeared in the materials distributed prior to the meeting. A motion was made, seconded, and carried to approve this report.
2.04 President's Report
President Duckstad reported on several items of interest to Board members. Among the highlights:
A new Legislative Committee, approved by the Board in fall 2002 and chaired by Susan Holden, had met twice to assist in formulating the MSBA's legislative agenda for the 2003 term.
The MSBA had participated with other regional state bar associations at the fall 2002 Great Rivers Bar Conference.
The MSBA had joined the Minnesota Tribal Court State Court Forum, a group of representatives from the Minnesota tribal courts and various levels of the state court judiciary, in a state Supreme Court petition seeking adoption of a procedural rule affording full faith and credit for tribal court judgments in Minnesota courts.
3. Action Calendar
3.01 Election of representatives to outside boards
" State Board of Legal Certification: Secretary Holden noted that Willard Wentzel had expressed interest in this MSBA-nominated position, but had not yet submitted a formal Qualifications and Interest Statement. She moved that the Board grant the MSBA Executive Committee the authority to nominate an individual for the position, rather than wait until the April Board meeting to receive additional Qualifications and Interest Statements. The motion was seconded and carried.
" Bar Admissions Advisory Council: A Qualifications and Interest Statement for this position had been submitted by Sam Hamer. President Duckstad called for additional nominations; there were none. A motion was then made, seconded, and carried to elect Mr. Hamer.
3.02 Action on the recommendation of the Insurance for Members Committee regarding the request of Reliastar to adjust the pool level of the MSBA Group Term Program
President Duckstad noted that this item had been withdrawn.
3.03 Report on the new process for establishing the MSBA legislative agenda and adoption of the charge for the Legislative Committee
This committee, chaired by Susan Holden, was formed in September 2002 to develop a new process for formulating the Bar's legislative agenda. President Duckstad directed the Board's attention to a handout distributed at the meeting, which included revisions to this agenda item and a description of the process for the Board to follow in considering legislative proposals. He then recognized Ms. Holden to preside over the following:
3.03.01 Action on the recommendation of the Legislative Committee to adopt the Committee's charge
This item -- presented as Exhibit D in the handout -- described both the composition and the responsibilities of the new Legislative Committee. A motion was made, seconded, and carried to adopt this charge.
3.03.02 Preview of the 2003 Legislative Session
Ms. Holden recognized MSBA lobbyist Lloyd Grooms. Mr. Grooms noted that the session would see new faces following the recent elections, as well as new challenges posed in part by a state budget deficit. In addition to the Bar's agenda, he identified several issues likely to occupy legislators' time.
3.03.03 Action on the following legislative proposals
Ms. Holden described the new procedure developed by the Legislative Committee, under which all six resolutions were to be presented in one motion. Following a second, representatives of the sponsoring committees or sections would then present their resolutions in detail and respond to questions. At the end of the presentations, any board member could make a motion to divide the question and separate out controversial proposals for further discussion and separate votes.
She then presented the following six proposals:
A. Resolved, that the MSBA defers consideration of the Uniform Mediation Act to allow further time for study.
B. Resolved, that the previous position of the MSBA (December 2000) supporting passage of the Uniform Arbitration Act be modified to a position deferring consideration of the Uniform Arbitration Act to provide an opportunity for further study.
C. Resolved, that the MSBA support the adoption of the selected provisions of the Uniform Trust Act.
D. Resolved, that the MSBA support adoption of the Minnesota Guardianship and Protective Proceedings Act.
E. Resolved that for the 2004-2005 biennium, the MSBA should seek a total increase of at least $4 million in state appropriations for civil legal services funding and should make seeking this increase a high priority of the MSBA staff and lobbyist; and,
Further Resolved that the MSBA work with the Minnesota Supreme Court to make increased legal aid funding a high priority in the Supreme Court budget; and,
Further Resolved that the MSBA fully supports the judicial branch FY04-05 budget request as a high priority of its 2003 legislative agenda and commits to work closely with the leadership of the judiciary to obtain legislative approval.
F. Resolved that the MSBA support passage of the legislative proposals of the Real Property Section amending Section 481.13 subd. 3; proposing a new Section 507.401 for Contract for Deed Purchasers; clarifying Section 559.17 subd. 3 for assignments of rents and profits; creating effective dates for the above changes; and, amending Chapters 508 and 508A
Ms. Holden moved approval of resolutions A-F; after hearing a second, she recognized representatives of sponsoring groups for presentations of the proposals as they appeared in the official meeting materials.
During discussion, one Board member expressed concerns with the statute of limitations as proposed under one section of the Uniform Trust Act revisions contained in Resolution C. A motion was made, seconded, and carried to divide Resolution C from the proposals presented under the main motion.
President Duckstad then called the question on the main motion, which, as amended, was to approve Resolutions A, B, D, E, and F. The motion carried.
Discussion then turned to Resolution C, which contained proposed legislative changes to the Minnesota Trust Chapter, 501B. Among the changes was a proposed amendment and comment to Section 501B.153, Limitation of Actions Against Trustee. As noted in the comment, prior law provided that any action concerning a trust had to be commenced within six years. The amendment contained a change to this limitation as follows:
(b) No action for breach of fiduciary duty may be brought against a trustee more than three (3) years after the first to occur of:
(i) the removal, resignation or death of the trustee;
(ii) the termination of the beneficiary's interest in the trust; or
(iii) the termination of the trust.
Following discussion, a friendly amendment was made, seconded and carried to remove this Section 501B.153 from the larger resolution. President Duckstad then called the question on the motion to approve Resolution C as amended. The motion carried.
3.03.04 Action on modifications, if any, to previous MSBA legislative position
Ms. Holden noted that under action by the Board in 2000, legislative positions adopted by the MSBA remain in force for six years. The Legislative Committee handout referenced above contained a table listing 10 positions from 2000 and 2001 that were still in force under this policy. The committee recommended no changes to this list, and no additional action was taken.
3.04 Action on the Recommendation of the Ad Hoc Committee on Appellate Court Retirements
Ken White presented this proposal recommending that the MSBA continue its practice of honoring retiring Supreme Court justices and Court of Appeals judges. The report addressed both staff and financial commitments, and described general guidelines to mark retirements with events that were self-supporting. A motion was made, seconded, and carried to approve this recommendation.
3.05 Action on the Recommendation of the Ad Hoc Committee on the Section Administrative Fee
President Duckstad noted that this ad hoc committee had been formed following concerns raised at the April 2002 Board meeting over the MSBA's Section Administrative Fee. As part of a larger package of initiatives intended to balance that year's budget, the MSBA instituted an increase of $1, payable by all MSBA sections. Jarvis Jones, 2001-02 president of the MSBA, appointed the ad hoc committee to examine the history of this fee and its impact on individual sections, and to make recommendations regarding future administrative fees.
The committee's report, as contained in the official meeting materials, recommended retaining the fee at its current level of $3 per section member. A motion was made, seconded, and carried to approve this report.
3.06 Action on the Resolution to Establish a Task Force on Association Governance
President Duckstad introduced discussion of this resolution by noting one revision to the report as it appeared in the official meeting materials: The opening clause, containing the phrase "… is excessively large," had been revised to read "may be excessively large."
A motion was then made to approve the resolution as revised. During discussion, a revision was proposed to paragraph 2, which addressed the composition of the proposed new task force. As originally drafted, the task force was to include the presidents of the Hennepin and Ramsey County Bar Associations; the proposed amendment would have allowed the presidents of those two groups to appoint separate designees. While the current presidents of these associations had already agreed to serve on the proposed selection committee, a friendly amendment was moved, seconded and carried to allow these officers to designate representatives in their stead. The motion, as amended, carried.
3.07 Discussion on what the MSBA's role should be with respect to the Opinion of the Board on Judicial Standards Concluding that Judges may not serve as President of the MSBA
Brad Thorsen directed attention to a handout summarizing a recent opinion by the Board on Judicial Standards that judges should not serve as MSBA president. A motion was then moved and seconded to create a task force to study the issue, and, if appropriate, urge the Supreme Court to adopt a clarification of the applicable rules. The motion carried.
4. Consent Calendar
No actions were contained in this agenda item.
5. Report Calendar
President Duckstad directed attention to the report calendar, which included notice of five elections to be held at the April 2003 session.
6. New Business
There was no new business.
7. Future Meetings
April 26, 2003
June 19, 2003
The meeting adjourned at 2:25 p.m.
Susan M. Holden
Board of Governors
September 13, 2002
Pursuant to notice, a regular meeting of the Board of Governors of the Minnesota State Bar Association was held on Friday, September 13, 2002, at the Minnesota CLE Conference Center in Minneapolis. President Jon Duckstad presided. Treasurer David Stowman served as secretary.
1. ROUTINE BUSINESS
1.01 Roll Call
See attached sheet.
1.02 Approval of Minutes
A motion was made and seconded to approve the minutes of the meeting of June 28, 2002. The motion carried.
1.03 Treasurer's Report
Treasurer David Stowman reported that as of June 30, 2002, the Association had received 98.9% of budgeted dues revenue and 99.4% of total budgeted revenues. Mr. Stowman introduced Randy Kroll of the audit firm Wilkerson Guthmann & Johnson, who summarized the 2001-02 audit, focusing on the General Fund. He noted that Cash and Investments totaled $4.2 million at June 30, 2002, as compared to $4.0 million at June 30, 2001. A motion was made, seconded and carried to accept the Treasurer's Report; followed by a motion made and seconded to accept the audit as presented. The motion carried.
1.04 President's Report
President Duckstad referred to statements made earlier in the day during the Bar Leader Conference.
2. ACTION CALENDAR
2.01 Action on the recommendation to accept the audit of the MSBA General Fund and MCLE Fund for the year ending June 30, 2002
See action taken under Item 1.03 above.
2.02 Action on the recommendation of the Executive Committee regarding Board Structure
President-elect Jim Baillie reviewed the goals and recommendations of the Board Structure Committee. The ultimate goal of the Committee was to shift the Board's role more towards policy considerations. The Committee's recommendations include the establishment of three new Board committees:
1. The Operations Committee will replace the current Governance & Finance Committee and will manage the annual budget, periodically review programs, and monitor investment policy and performance. This committee will continue to include current members who are not Board members, but all future new members will be selected from the Board of Governors.
2. The Legislative Committee review all recommendations with regard to legislative positions that the MSBA is being asked to take and will oversee the MSBA's lobbying program. A specific charge for this Committee will be developed by the Committee and will be discussed at the next Board of Governors meeting.
3. The Strategic Change Committee will proactively consider impending threats and opportunities faced by the MSBA. This committee will be chaired by the MSBA President-elect. The importance of this Board function is emphasized by association management theory. One objective of the proposed change is to shift the focus of the MSBA president to external relations (i.e., with the legislature and the community), with less emphasis placed on having an annual "president's agenda," noting Bar officers will still be able to recommend areas of emphasis via this Committee. Proposals previously reviewed and allocated by the MSBA Impact Fund will become a part of this Committee.
A motion was made and seconded to accept the Report and direct the officers of the association to implement its recommendations. After discussion, a motion was made and seconded to amend the Report to define those who are considered to be members of the Board of Governors as including the alternates who are appointed by their district; the motion to amend carried.
Mr. Baillie clarified that all appointments to committees are made by the President. A friendly amendment was made to strike the term "current" in describing which Board of Governors members are eligible to serve as committee members. The consensus was that a person must be a member of the Board when appointed to a Board committee.
A question was raised as to whether the Legislative Committee is consistent with Articles 13.1 and 13.2 of the MSBA Bylaws. Mr. Baillie explained that no change to the Bylaws is anticipated to be necessary.
The question of whether to adopt the Report as framed and amended was called. The motion carried.
3.0 New Business
President Duckstad proceeded to call an item that was not on the agenda. He reported that the MSBA was given the opportunity to nominate someone to serve on the Search Committee for the new director of the Office of Lawyers Professional Responsibility. Since the MSBA received notice of this only a few days before the Board meeting, and since Monday, September 16 is the deadline for informing the Court about whether the MSBA has a nominee, the Executive Committee decided to ask the Board whether they would like to elect a nominee or whether the President should select someone. This background information was provided and it was noted that action on this item would be taken at a later point on the agenda.
2.04 Action on the request to support the Petition of the Minnesota Tribal Court/State Court Forum regarding Recognition of Tribal Court Orders and Judgments
President Duckstad called on Leo Brisbois who moved to support the amended petition filed with the Supreme Court to recognize tribal court orders and judgments in Minnesota's district courts. Brisbois introduced retired Judge Larry Cohen and Judge Andrew Small, along with co-chairs of the Tribal Court/State Court Forum, Judges Robert Schumacher and Henry Buffalo. Brisbois noted that the committee was mandated by the Supreme Court to solve some problems of jurisdictional overlap between the tribal and district courts; after meeting for two years the committee recommends that Minnesota adopt a full faith and credit rule, which several other states have adopted. He also noted that the rule would apply only to rulings in civil cases, not criminal.
Other groups that have reviewed the rule include the Supreme Court Advisory Rules Committee, which did not recommend adoption, feeling that further study is necessary and that it is a substantive law issue. The Conference of Chief Judges unanimously approved it. Judge Buffalo indicated that he believes that the proposed rule is a procedural one which does not create any new substantive rights.
President Duckstad recognized Barbara Runchey, chair of the Family Law Section, who reported that the Section Council met and unanimously recommended the Board of Governors approve the amended petition.
President Duckstad recognized Mark Gardner, co-chair of the Supreme Court Advisory Rules Committee, which voted to recommend that the salient terms of the proposed rule be integrated into the existing rule and statutes.
Steve Cahill of the 7th District reported that the General Rules of Practice Committee voted unanimously to recommend that the proposed rule not be adopted. This committee believes that it should be referred to the legislature or some larger policy-making body for consideration because it involves procedural changes.
Upon motion made and seconded that the MSBA recommend to the Supreme Court that the proposed rule be adopted, the motion carried.
2.03 Action on the Recommendation of the Real Property Law Certification Council to amend its bylaws
President Duckstad recognized Julie Bergh of the Certification Council, who presented the amendment with regard to the appeal process. Upon motion made and seconded to adopt the amendment, the motion unanimously carried.
2.05 Presentation on MSBAdvantage Program
President Duckstad called on Melissa Lindholm, MSBAdvantage Manager. Ms. Lindholm reviewed the available programs and services, which are designed to add value to membership and to the MSBA. This presentation is available for use by Board members to share the information with their district bar members.
2.06 Action on the recommendation of the Insurance for Members Committee regarding the request of ReliaStar to adjust the pool level of the MSBA Group Term Life program
2.07 Action on the recommendation of the Insurance for Members Committee regarding the Free Term Life Promotion
President Duckstad recognized MSBA Executive Director Tim Groshens, who reported that the Chair of the Committee was unable to attend the Board meeting. The committee proposes to decrease the Free Term Life Promotion from $25,000 to $10,000 and that the limit for which the individual is eligible to renew be increased up to $100,000. The MSBA Membership Committee does not feel that this will hurt the renewal process. A motion to adopt the recommendation was made, seconded and carried.
2.08 Election of representatives to outside boards
Lawyers Professional Responsibility Board - Qualifications and Interest Statements were submitted prior to the meeting by Wood Foster and David Sasseville. A motion was made and seconded to close nominations and elect Mr. Foster and Mr. Sasseville. The motion carried.
State Board of Legal Certification -- A Qualifications and Interest Statement was submitted prior to the meeting by Julie Bergh. A motion was made and seconded to close nominations and elect Ms. Bergh. An additional open position on this Board will be included on the agenda of the December meeting of the Board of Governors.
Lawyer Trust Account Board - A Qualifications and Interest Statement was submitted prior to the meeting by Daniel Gislason. A motion was made and seconded to close nominations and elect Mr. Gislason. The motion carried.
SMRLS - A Qualifications and Interest Statement was submitted prior to the meeting by John Eisberg. A motion was made and seconded to close nominations and elect John Eisberg. The motion carried.
2.09 Action on the Recommendation of the Probate and Trust Section to restore the charitable deduction for contributions by taxpayers who are subject to the Alternative Minimum Tax.
President Duckstad recognized Dale Schoonover, co-chair of the Probate and Trust Law Section Legislative Committee. Schoonover presented a request from the section to use the services of MSBA legislative representative Lloyd Grooms to assist the section's efforts to restore the charitable deduction, which will be considered at a Special Legislative Session to be held on Thursday, September 19, 2002. The Minnesota Supreme Court ruled that contributions to all charitable organizations by taxpayers subject to the Alternative Minimum Tax are not eligible for a tax deduction; a legislative proposal is being prepared to be introduced at the Special Session clarifying the law. The Non-Profit Committee of the MSBA Business Law Section also supports the recommendation to restore the charitable deduction. A motion was made and seconded to use MSBA lobbying resources to support this legislative initiative.
It was noted that the text of the legislative proposal has not yet been drafted by House Research or other legislative body. MSBA Bylaws Section 12.2(f) requires that a copy of the proposed bill or court rule must be presented for vote.
A motion was made and seconded to utilize services of Lloyd Grooms to support a properly adopted position of the section, with a friendly amendment made to limit the motion to the special session.
A question was raised as to the presence of a quorum; a count showed that 36 Board members were present, which was insufficient to constitute a quorum.
The Board adjourned at 3:55 p.m.
David L. Stowman
- Last Updated 11/01/05 -