April 26, 2002
The meeting was called to order by President Neckers at 9:30 a.m. on Friday, April 26, 2002, at the State Bar of Michigan, Lansing, Michigan.
Commissioners present were:
Marjory G. Basile
Scott S. Brinkmeyer, Vice President
Kimberly M. Cahill
Thomas W. Cranmer, Treasurer
Kathryn M. Day
Nancy J. Diehl, Secretary
Evanne L. Dietz
Kim Warren Eddie
James N. Erhart
Hon. Joseph J. Farah
Julie I. Fershtman, Assembly Chair
Dennis P. Grenkowicz
Michael S. Hohauser
W. Anthony Jenkins
Joshua A. Lerner
Daniel M. Levy
Craig H. Lubben
Richard D. McLellan
Hon. William B. Murphy
Bruce W. Neckers, President
Edward H. Pappas
Randolph P. Piper
Thomas G. Plunkett
Thomas C. Rombach
Kurt E. Schnelz
Hon. Cynthia D. Stephens
Charles R. Toy
Reginald M. Turner, President-Elect
Gregory L. Ulrich
Commissioners Barr and Keefe were absent and excused.
State Bar Staff Present:
John T. Berry, Executive Director;
Nancy F. Brown, Director, Communications;
Thomas K. Byerley, Director, Regulation Counsel;
Candace Crowley, Manager, Campaign Development;
Kathleen J. Fox; Director, Employee Services;
James C. Horsch, Director, Administration and Finance;
Will Kramer, Manager of Information Services & Technology;
Roberta M. Lott, Administrative Assistant;
Janet Welch, General Counsel
Karen L. Williams, Committees and Sections;
Present for such portions of the meeting as pertained to a specific agenda item were Justice Clifford Taylor, Anne Vrooman, and Vicky Kruckeberg from the Michigan Supreme Court; Judge William Whitbeck from the Court of Appeals; Lynn Chard, Executive Director, ICLE; David Haynes and Becky Bechler of Public Affairs Associates.
A moment of silence was observed in honor of former State Bar of Michigan President (1998-99) J. Thomas Lenga.
A motion was made and seconded to approve the Consent Agenda as amended. Motion carried.
The Board approved the minutes of the January 26, 2002, Board meeting.
The Board accepted the minutes of the following Executive Committee meetings:
January 14, 2002
January 22, 2002
January 24, 2002
February 11, 2002
February 19, 2002
February 25, 2002
March 4, 2002
March 11, 2002
March 15, 2002
March 18, 2002
March 25, 2002
President's Report—Bruce W. Neckers, President
The Board received the President's written report.
Executive Director's Report—John T. Berry, Executive Director
The Board received the Executive Director's written report and the UPL litigation report.
Professional Standards Committee—Nancy J. Diehl, Chairperson
The Board approved the following Client Protection Claims for payment:
The Board denied the following Claims on Appeal: CPF 1733 in the amount of $1,875.00 and CPF 1775 in the amount of $2,500.00.
The Board received the UPL Request for Litigation.
Commissioner Liaison Reports —Written reports by the following Commissioner Liaisons were included in the Board agenda packet:
- John M. Barr: Unauthorized Practice of Law Committee, General Practice Section, Senior Lawyers Section
- Scott S. Brinkmeyer: Health Care Law Section (distributed at meeting)
- Kimberly M. Cahill: Judicial Qualifications Committee, Law-Related Education Committee, Access to Justice for All Task Force, Probate & Estate Planning Section
- Nancy J. Diehl: Domestic Violence Committee, Children's Law Section, Criminal Law Section
- Jon Feikens: Improving Defense Counsel-Insurer Relations Committee, Negligence Law Section
- Julie I. Fershtman: Animal Law Section
- Ronald D. Keefe: Arbitration of Disputes Among Attorneys Committee, Upper Michigan Lawyers Committee, Workers' Compensation Law Section
- Joshua A. Lerner: Business Law Section, Law Practice Management Section
- Edward H. Pappas: Judicial Selection Committee, Alternative Dispute Resolution Section
COMMITTEES, COMMISSIONS & TASK FORCES
Programs and Services—Scott Brinkmeyer, Chairperson
Mr. Brinkmeyer reported that it has become apparent that money in excess of what has been budgeted would be required for the e-filing project. Discussions have taken place with Judge Donald Shelton (Chairperson of the Washtenaw County E-filing Task Force) regarding what could be accommodated that was not originally contemplated at the outset of the program. He is checking to determine if there may be funds available in the county to supplement the Bar's contribution of the project. They will reconvene in May and will report back at the Board meeting in June.
Lisa Allen-Kost reported that an update on section activities was included in the Board packet.
Mr. Brinkmeyer offered language regarding the Open Justice Commission Disabilities Report and a motion was made and seconded to approve the language. Motion carried. A motion was then made and seconded to amend the language and the motion carried. The language offered and adopted, with the amendment indicated in strikeout and italics, is as follows:
"The Board of Commissioners commends the disabilities committee for its work and recognizes its report as a valuable contribution to the important effort to improve the
situation of persons with disabilities in Michigan. accessibility of the legal system in Michigan to persons with disabilities. Accordingly, the Board authorizes the report be made available through the Open Justice Commission web pages, and authorizes the Open Justice Commission to make the report accessible to interested entities. The Board directs the Open Justice Commission to prioritize the recommendations concerning actions to be taken by the State Bar of Michigan for consideration during the 2002-03 budget deliberations.
The Board directs the Commission to continue to seek input regarding the report from the entities that are affected by the recommendations. Several of the Report's recommendations concern services that the Open Justice Commission recommends that the State Bar offer to external entities, i.e., the State Court Administrative Office, ICLE, MJI, law schools, and law firms. Continued exploration by the Disabilities Committee of the joint initiatives proposed by the report is encouraged and the Board encourages the Open Justice Commission to present recommendations to the Finance Committee for future funding consideration upon a request for the service from the external entity to which the recommendation is addressed."
Judge William Whitbeck presented information regarding delays in the Court of Appeals.
COMMITTEES, COMMISSIONS & TASK FORCES (Continued)
Finance and Human Resources—Thomas W. Cranmer, Chairperson
Mr. Cranmer reported that written financials and policies were included in the Board packet and that a year-end balanced budget is hoped and anticipated, noting that the Tier II post-retirement health care issue remains pending.
Mr. Cranmer further reported that the budget-planning process for the next fiscal year has begun, re-financing options are being reviewed, and sub-committees have been established to review auditor selection, investments and risk management insurance.
A motion was made and seconded to adopt the proposed financial policies. Motion carried.
Public Policy, Image and Identity—Reginald M. Turner, Chairperson
Mr. Haynes reported that with the lame duck session beginning in November, the Bar will be closely monitoring legislation concerning court reform, MDP, UPL and a potential voluntary bar proposal.
Mr. Haynes also reported that the legislature will be leaving around June 6th and will return in September.
Mr. Turner reported that the Public Policy Committee will be looking closely at the unified vs. voluntary bar issue, Cyber Court and Court reform. He noted that the 21st Century Courts Committee has been reactivated to work on court reform issues and monitor proposed legislation. He also reported that John Berry and Janet Welch would report on section advocacy at a future meeting.
Mr. Turner further reported that a judicial early retirement bill was discussed and it was determined that due to lack of publication time the Bar could not take a position. Given the potential significance of the bill on the profession, a legislative alert was e-mailed to members providing information about the bill. The Public Policy Committee will be analyzing ways to improve such communications in the future.
A motion was made and seconded to approve the following Board actions:
HB 5068—Property; other; adverse possession of real property; eliminate.
Delete from future reports
Civil Procedure, service of process; proof of service; eliminate provision stating failure to make service does not affect the validity of the service.
A motion was made and seconded to oppose in principle. Motion carried.
Children; parenting time; consideration of parenting time under family support act; require on motion of non-custodial parent.
Delete from future reports.
Children; support; responsibility for pregnancy and birth expenses under the paternity act; apportion between the parents.
Delete from future reports.
HB 5684—Fatal Malpractice; Torts; malpractice; exception to limitation on non-economic damage for wrongful death claims;
Delete from future reports; deferred to sections.
Attorney Licensing; Requires procedures for fingerprinting state bar licensing applicants to comply with federal mandates.
Mr. Turner asked if there was any objection to legislation deleted but none were forthcoming.
Michigan Court Rules
Proposed Amendment of Subchapter 9.200: Michigan's Judicial System. This proposal states that it has been more than 30 years since extensive revisions were made to these rules.
Deferred to Representative Assembly.
Proposed Amendment of Rule 6.508: Procedure; Evidentiary Hearing; Determination.
A motion was made and seconded to support. Motion carried.
Proposed Amendments of Rule 702 of the Michigan Rules of Evidence: Testimony by Experts.
Delete from future reports.
Proposed Amendment of Rule 3.603; Award of Costs to an Interpleader Plaintiff.
A motion was made and seconded to support in principle, except for subsection (E)(4). Motion carried.
Mr. Turner asked for comments from the public about the Bar's legislative program, but none were forthcoming.
Mr. Turner reported that there was a request from the appellee to file an amicus brief in Dressel v. Ameribank, a case regarding the unauthorized practice of law by financial institutions, banks and other mortgage lenders that invoice customers for preparation of legal papers.
Judge William Murphy noted that he would abstain from voting and Judge Cynthia Stephens recused herself during the discussion of the matter and did not vote.
Motion was made and seconded. Motion carried.
Professional Standards—Nancy Diehl, Chairperson
Ms. Diehl provided an update on the District I vacancy, noting that because there was no March board meeting and with the closeness of the election, the Executive Committee had voted to allow the election process to determine who would fill the seat. Applicants were notified and encouraged to submit an election petition.
Nominating Committee—Charles Toy, Chairperson
Mr. Toy reported that the committee recommended the reappointment of the three incumbents for the ABA House of Delegates. Further, they recommended that the additional two applicants be named as at-large alternate delegates.
A motion was made and seconded to appoint Karen Smith Kienbaum, David A. Perkins and Robert B. Webster to the ABA House of Delegates. Motion carried.
Young Lawyers Section—Evanne Dietz, Chairperson
Ms. Dietz provided an update on the section's recent and upcoming activities, including ongoing projects such as peer mediation, metro future lawyers and support of Access to Justice.
Mr. Neckers reported that he would be appointing a committee to be responsible for the gubernatorial debate during the annual meeting in September.
A motion was made and seconded that the Board will take action at the June Board meeting on Bylaws VI: Committees and Bylaws XII: Amendments, which is necessary to continue the committee restructuring process. Motion carried.
Mr. Neckers also reported that the Bar Leaders Retreat is scheduled for May 3 and 4 in Mt. Pleasant and has a good attendance registration. He noted that there is a section summit scheduled for June 13th and that the relationship with sections continues to improve.
Representative Assembly Chairperson's Report—Julie I. Fershtman
Ms. Fershtman reported the following:
1) The Representative Assembly meeting will proceed as scheduled tomorrow and those who will be attending the funeral services of Tom Lenga will be given excused absences.
2) Agenda issues include proposals on criminal defense assigned counsel standards, screening of candidates for judicial appointment and reports on member services and fiscal issues, including dues increase.
3) Input on the role and composition of the Assembly was requested through a survey that was distributed.
4) A request was made to encourage colleagues to become involved in the Assembly, recognizing the deadline for election petitions on April 30.
Justice Clifford Taylor, Anne Vrooman, and Vicky Kruckeberg presented information on the opening of the Hall of Justice. The building will be formally dedicated October 8 and the gala fundraising event for the Michigan Supreme Court Learning Center will be held October 12.
Executive Director's Report—John T. Berry
Mr. Berry reported on his trip to Nigeria.
Mr. Berry presented information on implementation of the strategic plan, which included 1) new programs proposed 2) resources required 3) financial levels required and 4) dues proposal. Also included was a 3-year financial plan with key assumptions, along with a proposed schedule for implementation. He noted that there would be a request for action at the June Board meeting.
FOR THE GOOD OF THE PUBLIC AND THE PROFESSION
Comments or questions from Commissioners
Mr. Neckers asked for comments or questions from the Commissioners, but there were none.
Comments or questions from the public
Mr. Neckers asked for comments or questions from the public, but there were none.
There was none.
There was none.
The meeting adjourned at 12:30 p.m.