MEETING
OF THE
BOARD OF GOVERNORS
OF THE
STATE BAR OF ARIZONA
April
16, 2004
Board Room
Arizona Bar Center
BOARD MEMBERS PRESENT: Pamela Treadwell-Rubin, President, Tucson; Charles W. Wirken, President-Elect, Phoenix; Helen Perry Grimwood, First Vice President, Phoenix; Jim D. Smith, Second Vice President, Yuma; Daniel J. McAuliffe, Secretary-Treasurer, Phoenix; Alan P. Bayham, Jr., Phoenix; Whitney Cunningham, Flagstaff; Stephen M. Dichter and Diane L. Drain, both of Phoenix; Raymond A. Hanna, Prescott; Perry L. Hicks, Bisbee; Joseph A. Kanefield, Phoenix; Phoebe Moffatt, President, Young Lawyers Division, Phoenix; Edward F. Novak, Phoenix; Steven P. Sherick, Tucson; Jeffrey Willis, Tucson; Public Members: Bennie R. Click, Munds Park; Fernando Gonzales and Emily R. Johnston, both of Tucson, and James B. Matthews, Phoenix; At-Large Members Paul W. Ahler and David K. Byers, both of Phoenix and Donald W. Carson, Tucson.
BOARD MEMBERS WITH EXCUSED ABSENCES: Perry L. Hicks, Richard Platt, Florence, Foster Robberson, Phoenix, Thomas Thompson, Globe, Ex Officio Members Ernest Calderón, Immediate Past President, Phoenix, Dean Toni Massaro, Tucson, and Dean Patricia White, Phoenix.
OTHERS PRESENT: Teresa Schmid, Executive Director; Robert B.Van Wyck, Chief Bar Counsel; Carrie Sherman, Director of Executive Projects; Nina Benham, Assistant to the Executive Director; Christine Thompson, Government Relations Director; Julie Wilson, Director of Accounting, Colleen McManus, Director of Human Resources; Matthew Silverman, Director of Communications and Attorney Peter Neisser, representing the Probate and Trust Law Sections.
President Pamela Treadwell-Rubin, called the meeting to order at 8:30 a.m.
EXECUTIVE SESSION convened at 8:30 a.m. and adjourned at 10:10 a.m. Regular session called to order at 10:15 a.m.
AUDIT REPORT BY MILLER ALLEN & CO. P.C.
Mark Landy and Robert Snyder, from Miller, Allen & Co., P.C., presented the final draft of the 2003 State Bar of Arizona audit to all board members. Mr. Landy reviewed the draft audit covering cash investments, liabilities (accrued) and net assets. There are three general journal adjustments 1) accrued interest 2) taxes and 3) unrealized loss from investments ($12,000 lower income). The handout “Internal Controls” showed one reportable condition compared to three last year. The reportable condition this year was that LOMAP did not have appropriate segregation of accounting duties in that one individual both received payments and also updates the accounts receivable records.
The Board discussed the Section reserves and Helen Perry Grimwood asked if they were restricted funds. It was noted that, under Generally Accepted Accounting Principles (GAAP), funds are restricted only if the restriction is imposed by from outside the organization.
Diane Drain requested that Section carryover funds be disclosed as “designated” funds within the audit. Mark Landy discussed that this figure could be footnoted within the audit. Julie Wilson said she would work with Mr. McVey in preparing the wording and providing this information to the auditors. Ms. Drain also requested that Mr. McVey disclose the Sections carryover figure on the board’s monthly financial statements going forward.
Mr. Landy stated that the audit received an “unqualified opinion” and that the staff was very helpful in assisting with the audit.
CHIEF FINANCIAL OFFICER’S REPORT
Dan McAuliffe, Treasurer, discussed highlights of the March 2004 financial statements. Year-to-date revenues are $24,430 above budget, consisting of $(2,828) in member dues and $27,258 in non-dues income. Pro Hac Vice income (included as part of member dues income) is $11,181 higher than budget. The surplus in March was $113,488 compared to a forecasted surplus of $28,958. Year-to-date, total surplus was $135,217 compared to a forecasted surplus of $(116,501).
The unrestricted net assets of the Bar are $3.480 million. The increase from the prior year is due to the $456,054 surplus in 2003. The Bar has liquid assets of $8.983 million and working capital of $3.09 million. The Bar’s net assets exceed the reserve policy of two months of operating expenses (currently $1,500,000) and exceed the reserve for sections’ carryovers of $435,000 by $1,545,000.
Mr. McAuliffe reported that the Accounting Procedures Manual received a B+ from the Auditors, and the Finance Policy Manual received an “A”. They will hopefully be available in May for review by the Board.
PRESIDENT’S REPORT
President Pamela Treadwell-Rubin presented the “Pin a Rose on You” awards for this month to
Leslie Ross, Production Coordinator, for being instrumental on the data collection for the Long Range Planning work, Jenn Moreira, Internet Services Manager, for her guidance and leadership on the web roll out that is scheduled for the beginning of May, and Kathleen Lundgren, Assistant to the Director of Government Relations, for all her hard work this year at the legislature to keep everyone up to date and coordinating the Sections and Committees.
President Treadwell-Rubin reviewed the new schedule this year for the convention. The Board's Convention meeting will start at 8:00 a.m. with officer elections, followed by photos at 8:45 a.m., with the remaining business portion of the meeting continuing commencing at 9:30 a.m. The Bar Leadership Institute is Wednesday, June 9th from 2:00 – 5:00 p.m. President Treadwell-Rubin asked that everyone remind Committees and Sections that they can attend free and do not need to register for the convention.
President Treadwell-Rubin reviewed the Keller summit that was held and the handouts were in the Board packet. President Treadwell-Rubin thanked John Furlong, General Counsel, Christine Thompson, Director of Government Relations, Robert Van Wyck, Chief Bar Counsel and Nedra Brown, Administrator Committees, Section, Young Lawyers Division (YLD) for all the great materials. President Treadwell-Rubin asked the liaisons to remind the Committee and Sections that these materials are available.
President Treadwell-Rubin announced the next Board meeting is on May 14th , starting from 7:30-9:00 a.m. with Breakfast with the Court in the Board Room.
President Treadwell-Rubin reported that Staff Appreciation would be kicked off with a reception following the Board meeting at 3:30 p.m. today.
President Treadwell-Rubin informed the board that items 4 and 5 (Governor’s Reports) would be moved to the May agenda due to time constraints on this agenda.
EXECUTIVE DIRECTOR’S REPORT
Teresa Schmid, Executive Director, reported on the Long Range Planning process in which the staff has been actively involved. The staff has generated 30 single spaced pages of recommendations. Ms. Schmid reported that 2004 will be the information gathering/stage setting for the plan and 2005 –2007 will be the implementation of the Long Range Plan.
Ms. Schmid informed the board that she would be traveling to visit with the Yuma Bar and will be at the Yavapai County Bar on April 22nd when President Treadwell-Rubin will be speaking.
Chas Wirken reported that the July 8-9th Board Retreat will be held in Flagstaff and Thursday night will be hosted by the Coconino County Bar Association.
Matthew Silverman, Director of Communications, presented a video on Lawyers on Call. This program is done in conjunction with Channel 12 on the first Friday of the month. Five attorneys donate their time to give free legal advice on a particular subject matter. In March, they handled 110 calls, and in April 150 calls. This program is estimated to be viewed by 200,000 households. The topic for April was advice on wills/trusts, and the topic for May will be landlord/tenant law related.
Mr. Silverman also reported that the May issue of Arizona Attorney will have a brochure on myazbar.org with FAQ’s. The rollout for the two new web sites (azbar.org for the public and myazbar.org for the membership) will be May 3, 2004.
NINTH CIRCUIT STUDY COMMITTEE
Jeff Willis reported on the latest proposed split of the Ninth Circuit. Senator Dianne Feinstein requested that the State Bar review and comment on the three bills before the Senate (S.2278 introduced by Senator Ensign, S.562 introduced by Senator Murkowski and H.R. 2723 introduced by Congressman Simpson). Mr. Willis reported that Arizona, Nevada and California are the fastest growing states and are double the size of the next sized circuit. After considerable discussion the board decided the following:
Diane Drain moved, Jeff Willis seconded to oppose any split of the Ninth Circuit and passed in a vote of 9-7.
Jeff Willis moved to advise Senator Dianne Feinstein of the ad hoc committee that was formed to study the Ninth Circuit. There was no second.
The board approved the following letter to be signed by President Treadwell-Rubin stating:
“The Arizona Board of Governors considered your letter at its regular meeting on April 16, 2004, and voted to affirm its previous position, that we oppose any split of the Ninth Circuit. I have enclosed a copy of the letter dated October 17, 2003, which describes our previous and continuing position.
We have convened a study committee of the State Bar to review issues related to such pending legislation. Should there be other bills or issues arising in the future on this topic, we would be happy to consider them through the auspices of this committee.”
SECURITY BYPASS PRIVILEGES
IN THE TRIAL COURT OF MARICOPA COUNTY
Hon. Colin F. Campbell and Marcus Reinkensmeyer reported on the increasing problems facing the courts which require a tougher policy for their security bypass system. Judge Campbell reported on the incidents where there have been increasing threats of workplace violence. In their random security checks, they have intercepted 11 firearms and even one attorney was carrying a handgun. Judge Campbell stated that a Task Force is being formed to gather information from other states and it is considering a number of options including an “express lane” for officers of the court. Currently the security bypass policy is frozen. They requested that two members of the Board serve on this Task Force. President Treadwell-Rubin will provide them the names. They hope to have a system implemented by mid-summer and in the meantime encourage attorneys to come at the 8:30 or 1:00 hour to come early as these are the busiest times.
APPOINTMENTS COMMITTEE
Jim D. Smith reported that S. Thomas Chandler resigned a week ago from the Commission on Appellate Court Appointments. The seat is open now for any political party but the candidate cannot be from Maricopa County. The application deadline is May 28, 2004. The Commission on Appellate Court Appointments is a non-partisan commission, chaired by the Chief Justice of the Supreme Court of Arizona. Its primary responsibility is to screen, interview and select judicial candidates for submission to the Governor for final selection to fill judicial vacancies.
Chas Wirken reminded the board that there was one opening that he is vacating on the Committee on Superior Courts. This is a Presidential appointment. Dave Byers reviewed the duties of this Committee. Mr. Wirken needs nominations by Tuesday, April 20, 2004.
ACCESS TO JUSTICE
Joe Kanefield, Chair reported that he would be presenting to the Board recommendations for funding options. He will be working on it and plans to bring it to the Task Force by the end of the month and to the board in May.
LIMITED ADMISSION ON MOTION – Legal Services Committee
Hugh Hegyi and Todd Lang appeared on behalf of the Legal Services Committee. Mr. Hegi stated that the Committee determined that its proposals could increase the number of lawyers that are willing to be employed by legal services organizations. Mr. Hegyi prepared a comparison handout that covered the Existing Rule and the Proposed Changes to Rule 39, 40 and 33.
After discussion,
Whitney Cunningham moved and Joe Kanefield seconded to adopt the Proposal as set forth by the Legal Services Committee.
Chas Wirken offered a friendly amendment to Rule 39, language attorney admitted to practice in Arizona; Under Rule 33, the Fee Waiver modification would require proof of client being indigent to prevent abuse of the exception. Mr. Wirken further requested the language under 33.3.a. to include “not attorney fees language” and to redraft language under 39.1.
Whitney Cunningham moved and Joe Kanefield seconded and motion carried to approve in concept the proposal from the Legal Services subject to review and proposed comment.
LIMITED ADMISSION ON MOTION FOR PUBLIC LAWYERS
AND/OR PRO BONO LEGAL SERVICES FINAL REPORT
Bruce Bowers and Jeremy Mussman, Co-Chairs, Public Lawyers Task Force reviewed the Committee's mission to look at ways to educate the Bar and the public about the roles of public lawyers, look at the ways the State Bar could better serve public lawyers, and study the possibility of a limited form of admission on motion in the public sector. Mr. Bowers and Mr. Mussman discussed the diversity of the public sector. The Board of Governors has already passed a resolution regarding supporting Loan Forgiveness legislation (S.1091). Currently this bill doesn’t have McCain or Kyle’s support at this time. The Final Report addresses reducing CLE costs for public lawyers, Bar disciplinary proceedings, the impact of multijurisdictional practice on public lawyers, and education of the Bar and the public about the role of public lawyers.
COMMITTEE ON SEXUAL ORIENTATION
AND GENDER IDENTITY PROPOSED REVISED RESOLUTION
Amelia Cramer, a Tucson attorney, reported on behalf of the Committee on Sexual Orientation and Gender Identity, with regard to a proposed revised resolution to the Diversity Policy of the State Bar. Ms. Cramer provided a background on the formation of the committee. The proposed revised diversity policy for the State Bar of Arizona, submitted by the Committee on Sexual Orientation & Gender Identity, April 16, 2004 reads as follows: “RESOLVED that the State Bar of Arizona is committed to promoting the inclusion of all its members in State Bar programs, committees, and activities, and to assuring the rights of all members within the organization without discrimination based on race, ethnicity, religion, disability, gender, sexual orientation, gender identity and expression, or geography. FURTHER RESOLVED that the Board of Governors will periodically monitor all existing programs, committees, and activities for compliance with the goal of diversity and with assurance of the rights of all persons in every aspect of the Bar.”
Sarah Showard, former Board Member, and Michael Woodward, Executive Director of the Southern Arizona Gender Alliance, presented a PowerPoint to the board on Gender Identity 101.
Tamara D. Brooks-Primera, President Arizona Women Lawyers Association, spoke and distributed a statement supporting change of the current policy of promoting diversity to add the classifications of sexual orientation, gender identity and expression, and geography to that policy.
Milagros A. Cisneros, Chair, Committee on Minorities and Women in the Law (CMWL), also spoke and submitted a letter to the board in support of SOGI’s proposed language change after their April 10th meeting of CMWL. In their letter of April 16, 2004 the CMWL “enthusiastically encourages the Board of Governors to approve such change at the Board’s April 16, 2004 meeting.”
Randall Howe, Task Force on Disabilities in the Legal Profession, spoke in support of the proposed SOGI language change.
After considerable discussion,
Helen Perry Grimwood moved and Stephen Dichter seconded the approval of the SOGI proposed language to read:
RESOLVED that the Arizona State Bar is committed to promoting the inclusion of all its members in State Bar programs, committees, and activities, and to assuring the rights of all members within the organization without discrimination based on race, ethnicity, religion, disability, gender, sexual orientation, gender identity and expression or geography.
FURTHER RESOLVED that the Board of Governors will periodically monitor all existing programs, committees, and activities for compliance with the goal of diversity and with assurance of the rights of all persons in every aspect of the Bar.”
Chas Wirken, made a friendly amendment in the first line to correct the language to reflect “State Bar of Arizona” instead of Arizona State Bar. Additionally to put a comma after “or” and before “geography”. Ms. Grimwood and Mr. Dichter accepted the friendly amendment. The motion carried in a 11-8 vote.
EXECUTIVE SESSION convened at 2:10 p.m. and adjourned at 2:25 p.m. Regular session was again called to order at 2:30 p.m.
AWARDS COMMITTEE REPORT
Emily Johnston, Chair of Awards Committee, reported on the recommendations for the annual awards to be given out at the 2004 Convention. Ms. Johnston gave a description of the criteria for each award before giving the Committee’s recommendation. The Board ultimately made the following selections:
Award of Special Merit – Hon. Edward E. Davis
James A. Walsh Outstanding Jurist Award – Hon. Mary Murphy Schroeder and Hon. George B. Nielsen, Jr.
BOARD OF LEGAL SPECIALIZATION REQUEST TO OPPOSE
AMENDMENT TO ER 7.4
Andrew Abraham, Chair of the Board of Legal Specialization, and Mark Harrison, Attorney at Law that have proposed that the Supreme Court amend Rule ER 7.4 of the Arizona Rules of Professional Conduct to include a provision granting “absolute immunity” for those persons involved in the peer review process conducted by the Advisory Commissions as a part of the certification process by the Board of Legal Specialization. Mr. Harrison also proposes that the Court direct the Board of Governors to instruct the Board of Legal Specialization to change its Rules and Regulations to require a “denial report” in the event that an applicant is denied certification or recertification based on comments received during the peer review process. Both Mr. Abraham and Mr. Harrison addressed the board to give the pros and cons for consideration. The Board of Legal Specialization will be meeting and review the comments and suggested changes to their rules and submit a further report and recommendations to the board .
CONSENT AGENDA
James Matthews moved, Ben Click seconded and the motion carried to approve the Consent Agenda: March Board Minutes, Resignations of Members in Good Standing and Ratification of MCLE Reinstatements.
BOARD COMMITTEE REPORTS
Human Resources/Personnel – Jim Matthews, Human Resources/Personnel Committee Chair, reported that the HR Policy would be sent out via email for everyone’s review and vote in May.
RULES REVIEW COMMITTEE
Jeff Willis, Vice-Chair of the Rules Review Committee, reported that the committee recommends the adoption of the proposal of the Civil Practice and Procedure Committee’s petition to change Civil Rule 10, with a technical amendment to the draft rule as provided by Christine Thompson, Director, Government Relations.
Chas Wirken moved, Ed Novak seconded and motion the carried to adopt the proposal of the Civil Practice and Procedures Committee’s petition to amend Civil Rule 10(d), with the amendment to include “applicable”, and to submit the petition to the court.
Christine Thompson, Director of Government Relations reported on the changes that the committee recommends to the Proposed Petition to Change Rule 32(c)(9); 34(e)(2); 45(h); and 64(d); MCLE and Member Services Modifications. After discussion:
Ed Novak moved and Jeff Willis seconded and motion carried to approve the Petition as amended to Rule 32(c)(9); 34(e)(2); 45(h); and 64(d) MCLE and Member Services Modifications.
Mr. Willis reported that the committee recommends the adoption of the proposal of the Civil Practice and Procedure Committee’s proposed Petition to adopt a new rule – Ariz. R. Civ. P.7.2 Motions in limine. After discussion:
Whitney Cunningham moved to approve the Ariz. R. Civ. P.7.2 proposed Petition with the correction of the typographical error in sub-paragraph (e) and to file it with the Court. Jeff Willis seconded as amended and the motion carried unanimously.
Mr. Willis reported that the committee recommends the adoption of the proposal of the Civil Practice and Procedure Committee’s proposed Petition to Amend Ariz. R. Civ.P.58(e).
Mr. Willis reported on the proposed Amendment to Rules of Arbitration of Fee Disputes. This is an information item only on the agenda. Chas Wirken offered that the language could be improved. Rules asked to take another look at Fee Arbitration
Dan McAuliffe moved and Jeff Willis seconded the motion to table unanimously carried.
Mr. Willis reported that the proposed Criminal Jury Instructions are nearing completion and will be brought to the Rules Committee in June.
Christine Thompson, Director of Government Relations, reported on the status of bills before the legislature. The bills supported by the State Bar of Arizona are: HB 2221, UCC; Bulk Sales; Repeal; SB 1210, Revised Uniform Arbitration Act.
The bills opposed by the State Bar of Arizona are: HB 2386 Superior Court Judges; Election; HB 2387, Justice Courts; Colocation; HCR 2007 Judicial Retention; Party Affiliation, HCR 2039 Judicial Retention; Two-Thirds Vote; HCR 2010 Supreme Court Jurisdiction, HCR 2027 Supreme Court Jurisdiction; HCR 2018 Justices and Judges Election; HCR 2019 Superior Court; Jurisdiction; Technical Correction; HCR 2024 Justices and Judges; Senate Confirmation, SCR 1023 Justices and Judges; Senate Confirmation, SCR 1035 Justices and Judges; Senate Confirmation; HCR 2025 Supreme Court; Administrative Supervision; HCR 2027 Supreme Court; Jurisdiction, HCR 2010 Supreme Court Jurisdiction; HCR 2030 Separation of Powers; Judicial Lawmaking; HCR 2034, Judicial Conduct Commission; HCR 2039, Judicial Retention, Two Thirds Vote; HCR 2040 Judicial Appointment Commission SCR 1037 Judicial Appointment Commissions; SCR 1023 Justices & Judges; Senate Confirmation; SCR 1024 Justices and Judges, Election HCR 2018 Justices and Judges; Election; SCR 1025 Judicial Conduct Commission, HCR 2034 Commission on Judicial Conduct; Appointment; SCR 1031 Arizona Citizens Protection Act; SCR 1035 Justice and Judges; Senate Confirmation; SCR 1037 Judicial Appointment Commissions.
The bills listed as No Position by the State Bar of Arizona are: HB 2025 Medical Board; Omnibus; HB 2128 Small Claims Court; Mail Service; HB 2138 Supreme Court; Performance Audit; HB 2142 Arizona Medical board; Licensure; HB 2213 Right of Attorney; Technical Correction; HB 2215 Small Claims Hearing Officers; HB 2253 Notaries Public; HB 2260 Court Clerks; Funds; Report; HB 2383 Public Information; Confidentiality; HB 2516/see HB 2020/See SB 1037, Restoration of Uniform Trust Code; HB 2609 Jury Duty; Lengthy Trial Fund; HCR 2021 Pro Tem JP’s; Qualifications; SB 1037 Uniform Trust Code; SB 1049/See HB 2395, Justice of the Peace; Presiding; SB1076/See HCR 2021/See SCR 1009, JP’s Pro Tem Qualifications; SB 1076/See HCR 2021/See SCR 1009, JP’S; Pro Tem Qualifications; SCR 1009/See HCR 2021/See SB1076 JP Pro Tempore; Qualifications; SCR 1034 Judges Selection; Population Threshold.
There being no further business to come before the Board of Governors, the meeting adjourned at 3:30 p.m.
Respectfully submitted,
Daniel
J. McAuliffe
Secretary-Treasurer