MEETING
OF THE
BOARD OF GOVERNORS
OF THE
STATE BAR OF ARIZONA
October 26, 2007
Arizona Bar Center
Phoenix
BOARD MEMBERS PRESENT: Daniel J. McAuliffe, President, Phoenix; Edward F. Novak, President-Elect, Phoenix; Raymond A. Hanna, First Vice-President, Prescott; Alan P. Bayham, Jr., Second Vice-President, Phoenix; Joseph A. Kanefield, Secretary-Treasurer, Phoenix; Bryan B. Chambers, Globe; Richard D. Coffinger, Glendale; Roger H. Contreras, Sierra Vista; Michael J. Crawford, Tucson; Whitney Cunningham, Flagstaff; Stephen M. Dichter, Phoenix; Abbe M. Goncharsky, Young Lawyers Division, Tucson; Richard T. Platt, Florence; Foster Robberson, Phoenix; Jimmie Dee Smith, Immediate Past President, Yuma; Public Members: Frank Barriga, Glendale; Bennie R. Click, Munds Park; Fernando Gonzales, Tucson; and Alexander B. Jamison, Scottsdale; David K. Byers, Phoenix; Virginia Herrera-Gonzales, Phoenix; Ex Officio Members: Dean Toni Massaro, Tucson; Dean Patricia White, Tempe.
BOARD MEMBERS ABSENT: Amelia Craig Cramer, Tucson; Diane L. Drain, Phoenix; H. Leslie Hall, Phoenix; Dee-Dee Samet, Tucson; At Large Member: Paul W. Ahler, Phoenix; Ex Officio Members: Dean Dennis Shields, Phoenix.
OTHERS PRESENT: Teresa Schmid, Executive Director; Robert Van Wyck, Chief Bar Counsel; John Furlong, General Counsel; Colleen McManus, Senior Director of Human Resources; Larry McVey, Chief Financial Officer; I. Godwin Otu, Diversity Director; Nina Benham, Assistant to the Executive Director; Carrie Sherman, Director of Executive Projects; Patricia Giallanza, Director of Communications; Kathleen Lundgren, Government Relations Administrator; Tim Eigo, Editor, Arizona Attorney Magazine; Tom Harper, Manager of Accounting; Betty Flores, Director of the Resource Center; Lisa Deane, Director of CLE; Nedra Brown, Director of Committees and Sections; and, Jenn Moreira, Director of Web Services.
GUESTS: Jim Hunter; Brent Moody; Robert Swan; Stuart Goldstein; Bill Penn; Carlos Estrada; Frank Lewis; Richard Tracy; L. Alton Riggs; Richard Waters; Mark Harrison; Charles Filler; Theodore Matz; Bill Holahan; Joe Mikitish, Roger Curley, Les Raatz, C. Brad Vynalek, Diane Meyers; Larry Tinsley; Judge Gary E. Donahoe; and John Rogers.
President Dan McAuliffe called the meeting to order at 8:45 a.m.
President McAuliffe reported that on October 9, 2007, he wrote to the editor of the Arizona Republic. The letter, which President McAuliffe had previously shared with the Board, expressed “the concern of this organization with recent attacks on Judges of the Maricopa County Superior Court and the manner in which they have been conducted.” The President of the Arizona Trial Lawyers Association has since asked us to join in a resolution “supporting (consistent with Ethics Rule 8.2(a)) the principle that lawyers should not attack the integrity of the justice system by means of reckless or false statements.”
Alan Bayham moved, Richard Coffinger seconded and the motion carried unanimously that the State Bar of Arizona Board of Governors not sign the resolution from the Arizona Trial Lawyers Association due to language in the proposal that might interfere with the Bar’s ongoing disciplinary investigation.
The Board agreed that they would consider supporting something that was more neutrally worded and ask that the President convey their position to the President of the Trial Lawyers Association.
EXECUTIVE DIRECTOR’S REPORT
Teresa Schmid, introduced I. Godwin Otu, Diversity Director, who started with the Bar in October. Ms. Schmid directed the Board’s attention to her written report in the Board materials and its new form. Going forward, Ms. Schmid will report monthly on the status of key organization activities. At the end of each quarter, she will report on Key Performance Indicators.
Ms. Schmid stated that staff has been working with the Human Resources Committee on developing the organizations Key Performance Indicators, which will be ready for the E.D.’s report or the fourth quarter of 2007.
President McAuliffe requested a motion to approve the Consent Agenda.
Alan Bayham, Chair, reviewed the recommendations from the Appointments Committee and the following action was taken:
Community Legal Services Board of Directors
Mr. Bayham reviewed the recommendations of the Appointments Committee for the two openings on the Community Legal Services (CLS) Board of Directors. The CLS Board consists of 27 members, four of whom are State Bar representatives. The State Bar Board of Governors is asked to make two appointments to the CLS Board of Directors. The Appointments Committee recommends the following candidates to fill the two positions: Ms. Victoria E. Washington, Deputy Public Defender, and Mr. James J. Haas, Maricopa County Public Defender. No motion required:
The Board voted for Ms.Victoria E. Washington and Mr. James J. Haas to be appointed to the Community Legal Service Board of Directors.
Supreme Court Appointments
Mr. Bayham reported on the Supreme Court’s Appointments as follows: Arizona Supreme Court Committee on Character and Fitness: Mr. Richard E. Gordon, appointed to full seven year term to October 2014 and on the Arizona Supreme Court Committee on Examinations (2 openings) – Ms. Katherine M. Cooper, filling an unexpired term to October 2009; and, Mr. James N. Drake, appointed to full seven-year term to October 2014.
Professional Volunteer Opportunities
Mr. Bayham stated the Appointments Committee is accepting applications for the following volunteer opportunities: Arizona Foundation for Legal Services & Education Board of Directors and City of Glendale Judicial Selection Advisory Board. The Committee’s recommendations will be an action item at the December 14th meeting of the Board of Governors.
Peter Collins, Jr. gave an account of the success of the College of Trial Advocacy, which is modeled after the National Institute for Trial Advocacy (NITA) program. The College needs students for its July 29-August 2 program at the Black Canyon Conference Center. Mr. Collins asked the Board encourage people to attend. Mr. Collins also recognized staff member Teri Yeates, Sections and Committees Administrator, for the wonderful job she has done for the Trial Practice Section.
President McAuliffe reported on a proposal submitted to Senior Lawyers in part regarding dues and mandatory continuing legal education (MCLE) requirements for members of the Bar over the age of 70 and for consideration of establishing a Senior Lawyers Division of the Bar. Richard Coffinger, Board Member, made an alternate proposal, which was included in the Board materials for consideration. Nearly two hours was allocated for discussion of proposals that would affect the dues and MCLE for Senior Lawyers, the creation of a Senior Lawyer Division, and the addition of an “emeritus” membership status. Frank Lewis, Senior Lawyers Group, addressed the Board, along with several other senior lawyers who addressed the Board to express their opinions. The proposals will be voted on at the November meeting.
TUCSON BUILDING REPORT
Larry McVey, Chief Financial Officer, updated the Board on the purchase of a building for the Southern Regional Office. There are two issues of concern: title issues pertaining to the driveway and the approval of the interior design of the building. Mr. McVey anticipates the closing will occur in December, with a three-month construction period to follow.
FINANCIAL REPORT
The State Bar of Arizona August 2007 financial statements and the Chief Financial Officer’s financial report to the Finance Committee were included in the BOG package of meeting materials.
Larry McVey, Chief Financial Officer, reported that the YTD surplus through August is $637,000 and is significantly above budget due to the following favorable variances from budget:
| Non-dues income is 5.7% higher than budget | $235,000 |
|
| Total Personnel Costs is 6.4% less than budget | 334,000 |
|
| Other expenses are 5.4% less than budget | 212,000 |
|
| Unfavorable other items, in total |
(62,000) |
|
| Net Favorable variance | $719,000 |
|
| Sections carryover at August 31, 2007 is $232,000. | ||
The Line of Credit balance at October 26, 2007 is $1,432,000 and the current interest rate is 6.96% per annum. The interest rate adjusts monthly based on the LIBOR 30 date rate. Mr. McVey estimated the high balance on the LOC in December, before 2008 dues receipts are applied, will be $4,000,000 including purchase of the Tucson office property. The loan balance compares favorably to the loan availability of $7,273,000. Thus if the Bar needed to raise cash it could draw $3,273,000 on the LOC. Net assets of the Bar at the end of August are $6,221,000 or approximately $327 per member.
E-FILING
The Chief Justice is gathering information on the impact of making e-Filing of pleadings mandatory for members of the Bar in Superior Court in Maricopa County. Prior to signing such an order, she wants feedback from the Bar membership on the issue.
Alan Bayham moved and Ben Click seconded and the motion carried unanimously to recommend sending the request from the Chief Justice on the impact of making e-Filing of pleadings mandatory for members in Superior Court in Maricopa County to the Civil and Criminal Practice and Procedure Committees for feedback, and set it for discussion at the December Board meeting.
RULES COMMITTEE
Foster Robberson on behalf of Amelia Craig Cramer, reported on the proposed rules and changes, and the Board took the following actions:
Criminal Law Jury Instructions
Hon. Gary Donahoe, Chair of the Criminal Jury Instruction Committee, reviewed the history of the committee's work and presented the new Jury Instructions. The Board considered the proposed Criminal Jury Instructions submitted by the Committee, and will vote upon them at the November 30th meeting of the Board.
State Bar Petition to Amend Rule 33.1, Uniform Interrogatories (Civil Practice & Procedure)
Larry Tinsley and John Rogers spoke on the recommended amendment to Rule 33.1 Uniform Interrogatories. The amendment would make the interrogatories more uniform and language more gender neutral. The work on these uniform interrogatories has taken place over a two-year time span. No motion being required as it is a recommendation from the Committee:
The Board voted unanimously to approve the amendments recommended by the Civil Practice and Procedure Committee to Rule 33.1, Uniform Interrogatories, and to file a Petition with the Supreme Court.
State Bar Petition to Amend the Rules of Appellate Procedure to Modify Length Restrictions
On Petitions for Review from a Page Limit to a Word Count Limit
Mr. Robberson reviewed the recommended Petition to Amend the Rules of Appellate Procedure to modify the length restrictions on petitions for review from a page limit to a word count limit. The Board discussed the statement of compliance that would be required on the last page. No motion being required as it is being recommended from the Rules Committee:
The Board voted unanimously to send to the Supreme Court a petition proposed by the Appellate Practice Section to limit the length of petitions for review and amicus briefs by word count, rather than by page count.
R-07-0007 Legal Arizona Workers Act
The Board discussed the Legal Arizona Workers Act and the petition filed by the Administrative Office of the Courts. Dave Byers reviewed the Petition with the Board. No motion being necessary as the action was recommended by the Rules Committee:
The Board voted to file with the Supreme Court a comment in support of the proposed Rules of Procedure for cases under the Legal Arizona Workers Act (colloquially referred to as the “Employer Sanctions Law”) as submitted in the petition filed by the Administrative office of the Courts. Dave Byers abstained from voting.
R-07-0006 Juvenile Probation Hearing Rules Comment
The proposed Comment regarding the Petition to Amend Rule 8.4 of Arizona Rules of Criminal Procedure to add Rule 27.12 and 40, Arizona Rules of Criminal Procedures regarding the Juvenile Probation Hearing Rules as drafted was discussed. After discussion, no motion being required as the action was recommended by the Rules Committee:
The Board voted to file with the Supreme Court a comment regarding the Petition to Amend Rule 8.4 of Arizona Rules of Criminal Procedure to add Rule 27.12 and 40, Arizona Rules of Criminal Procedures (Juvenile Probation Hearing Rules). (sua sponte). Dave Byers abstained from voting.
State Bar Petition to Amend Rule 5.2 Vulnerable Adults
Mr. Robberson reported that Debbie Weecks, on behalf of the Solo Practice/Small Firm Section, presented a proposed petition to amend Rule 5 of the Rules of Civil Procedure to permit attorneys to provide limited representation in cases involving alleged exploitation of vulnerable adults. It was at that time that the petition was asked to go to Civil Practice and Procedure Committee to assist with the language. The Civil Practice and Procedure Committee discussed a new Civil Rule 5.2, Limited Representation for Vulnerable Adults as per the Board's instructions and reported that the final draft would be brought to the board's rules committee at their November meeting and to the entire Board at their November 30th meeting.
COMMITTEE ON PERSONS WITH DISABILITIES IN THE LEGAL PROFESSION
Joe Mikitish reported that the Committee on Persons with Disabilities in the Legal Profession sponsored a nationwide job fair directed to those with disabilities. It was held in Washington, D.C. Their Great Speakers & Connections Series will kick off on November 8th, with Justice Michael D. Ryan as the keynote speaker.
Mr. Mikitish also reported that the Committee is accepting nominations for the John R. Stitch Award for employers who have made strides in accommodating individuals with disabilities.
LEGISLATURE
Janna Day introduced Roger Curley and Les Raatz , presenters.
Amendments to section 14 – Guardians and conservators
Roger Curley, Probate and Trust Section, reviewed the Probate and Trust Executive Council proposed changes to 14-5314, 14-5419 and 14-5425. The Probate and Trust Executive Council is recommended the Board support this legislation and authorize the Government Relations department to support this legislation for approval in the upcoming term of the Arizona legislature.
Revisions of Arizona Trust Code (ATC)
Les Raatz stated that this was formerly Uniform Trust Code which was repealed and now is the Arizona Trust Code. The Probate and Trust Law Executive Council and the ATC Committee recommended support for the proposed legislation. The Tax Section also passed the recommendation to support this legislation. Mr. Raatz, on behalf of the ATC Committee, is recommending the Board support this legislation and authorize the government relations department to support this legislation for approval in the upcoming term of the Arizona legislature.
Section 46-456 – Vulnerable Adults
Ms. Day reported that this legislative action is identical to last year and the need to find someone to sponsor it this year.
ABA DELEGATES REPORT
C. Brad Vynalek, ABA Delegate, notified the Board that ABA Day in Washington would be held on April 15-17th in 2008. The mid-year meeting of the ABA House of Delegates will be held February 11 and 12th. Mr. Vynalek further reported on the U.S. Senate voting to increase funding for Access to Justice 12.8% ($40 Million).
INDIGENT DEFENSE TASK FORCE
Diane Myers presented the Indigent Defense Task Force report. The Supreme Court modified Rule 6-8 to make compliance with the ABA guidelines mandatory. The number of pending capital cases in Maricopa County eclipses those in the rest of the state, and defense organizations are working to address this. The Task Force will study the question of allocation of resources.
MAP Celebrates 20th Anniversary
The Member Assistance Program (MAP) celebrated its 20th anniversary. Harriet Turney, one of the founders of the program, and Hal Nevitt, Director of MAP, introduced six attorneys who gave testimonials as to how MAP assisted them as individuals.
BREAK 12:50 p.m. to 1:10 p.m.
LUNCH
BYLAWS RECOMMENDED CHANGES
John Furlong, General Counsel, recommended four changes to the Bylaws that will be voted on at the November 30th meeting. These would: 1) change the State Bar’s address from the old Monroe Street address to the 24th Street address; 2) stipulate that Secretary/Treasurer shall serve as the Vice- Chair of both the Finance and Audit Committees; 3) allow some flexibility as to the time and place of the last regular meeting of the Board of Governors; and 4) require a minimum of nine regular meetings of the Board of Governors annually.
ABA ATTORNEY-CLIENT PRIVILEGE RESOLUTION
President McAuliffe reviewed the request from the ABA to support S.186 and H.R. 3013, both known as the “Attorney-Client Privilege Protection Act of 2007” by executing a resolution from the Board to be sent to the ABA and the request to send letters to the Congressional delegation. After discussion,
Jim Smith moved and Michael Crawford seconded and the motion carried to authorize President Daniel J. McAuliffe to execute a resolution on behalf of the State Bar Board of Governors and forward it to the ABA and to send the requested letters in support of S. 186 and H.R. 3013, known as the Attorney-Client Privilege Protection Act of 2007, to the Congressional delegation. A copy of the Resolution is attached hereto as part of these minutes.
ADJOURN
Whitney Cunningham moved and Michael Crawford seconded and motion carried unanimously to adjourn.
Respectfully submitted,
THE STATE BAR OF ARIZONA
BOARD OF GOVERNORS
AT ITS REGULAR MEETING, OCTOBER 26, 2007,
ADOPTED THE FOLLOWING RESOLUTION:
RESOLVED, that the State Bar of Arizona strongly supports the preservation of the attorney-client privilege and work product doctrine as essential to maintaining the confidential relationship between client and attorney required to encourage clients to discuss their legal matters fully and candidly with their counsel so as to (1) promote compliance with law through effective counseling, (2) ensure effective advocacy for the client, (3) ensure access to justice and (4) promote the proper and efficient functioning of the American adversary system of justice; and
FURTHER RESOLVED, that the State Bar of Arizona opposes policies, practices and procedures of governmental bodies that have the effect of eroding the attorney-client privilege and work product doctrine and favors policies, practices and procedures that recognize the value of those protections.
FURTHER RESOLVED, that the State Bar of Arizona opposes the practice by government officials of seeking to obtain a waiver of the attorney‑client privilege or work product doctrine through the granting or denial of any benefit or advantage.
FURTHER RESOLVED, that the State Bar of Arizona Bar opposes government policies, practices and procedures that have the effect of eroding the constitutional and other legal rights of current or former employees, officers, directors or agents (“Employees”) by requiring, encouraging or permitting prosecutors or other enforcement authorities to take into consideration any of the following factors in making a determination of whether an organization has been cooperative in the context of a government investigation:
(1) that the organization provided counsel to, or advanced, reimbursed or indemnified the legal fees and expenses of, an Employee;
(2) that the organization entered into or continues to operate under a joint defense, information sharing and common interest agreement with an Employee or other represented party with whom the organization believes it has a common interest in defending against the investigation;
(3) that the organization shared its records or other historical information relating to the matter under investigation with an Employee; or
(4) that the organization chose to retain or otherwise declined to sanction an Employee who exercised his or her Fifth Amendment right against self-incrimination in response to a government request for an interview, testimony, or other information.
FURTHER RESOLVED, that the State Bar of Arizona supports the enactment of H.R. 3013, S. 186, and/or other similar legislation designed to protect the attorney-client privilege, the work product doctrine, and Employee’s constitutional and other legal rights from governmental policies that have the effect of eroding these fundamental legal principles.