I. Call to Order
The meeting was called to order at 12:30 p.m. on Thursday, April 25, 2013 at the Minnesota CLE Conference Center in Minneapolis. President Robert Enger presided, with Jud Haverkamp recording. Roll Call attached.
A. Becker Awards
President Bob Enger presented the Bernard Becker Awards for legal services work. The awardees were: Lenore Millibergity (legal services attorney award); Eva Kritzeck (legal services staff award); and David Patton (law student award).
B. Graven Award
President Enger called on Larry Wertheim, of Kennedy & Graven, who presented the David Graven Award for public service to Bob Latz, a lawyer, former legislator, and author.
III. President’s Report
President Enger reported that Minnesota was well-represented recently at ABA Day in Washington, D.C., where representatives met with members of Congress to discuss funding for legal services and other law-related concerns. Representing Minnesota were MSBA President Enger, Past-President Brent Routman, Secretary Mike Unger, and Judge Cara Lee Neville. He then noted upcoming events, including a retirement party for Justice Paul Anderson and Nine Days in June, and encouraged all to attend.
IV. Treasurer’s Report
Richard Kyle, Treasurer, reported that dues revenue is at 98% of budget; overall revenue is at 90%, and expenses are at 67%. He advised that the 2013-14 budget process is underway and invited interested persons to make presentations to the Operations Committee.
V. Executive Director’s Report
Tim Groshens, Executive Director, referred the members to his written report and invited questions, of which there were none.
VI. Consent Calendar
Approval of minutes of the December 14, 2012 meeting
A motion was made and seconded to adopt the consent calendar. The motion carried.
VII. Additional Agenda Items
There were no additions to the published agenda.
VIII. Elections/Appointments Committee
Dyan Ebert, Chair, announced that applicants are being sought for a number of positions and noted that outstate applicants for the position of MSBA Secretary were especially wanted. She then presented the slate of recommended candidates as follows:
Client Security Board Robert Bauer of Dakota County was recommended for a seat on the Client Security Board. A motion was made, seconded, and carried to nominate Mr. Bauer to the board.
Board of Continuing Legal Education William Kuhlmann and Constance Tuck were recommended for seats on the State Board of Continuing Legal Education. . A motion was made, seconded and carried to nominate Mr. Kuhlmann and Ms. Tuck
Legal Services Advisory Committee Nicholas Slade was recommended for election to the Legal Services Advisory Committee. There being no nominations from the floor, Mr. Slade was nominated.
Central Minnesota Legal Services Board John Saunders was recommended for election to the Central Minnesota Legal Services Board. There being no nominations from the floor, Mr. Saunders was elected.
MSBA/ABA Delegates Samuel Edmunds, Robert Enger, and Mary Schneider were recommended for election as MSBA/ABA Delegates. A motion was made, seconded and carried to elect Mr. Edmunds, Mr. Enger, and Ms. Schneider.
Anishinabe Legal Services Valerie Field was recommended for election to the board of Anishinabe Legal Services. There being no nominations from the floor, Ms. Field was elected.
IX. General Policy Committee
Eric Larson, Chair, reported on the work of the committee and presented several items for Assembly action:
Action on the recommendation of the Committee to support a Human Rights Committee Resolution to reinstate Rule of Law Resolution as an MSBA Policy
Mr. Larson presented the Human Rights Committee’s recommendation to reinstate MSBA’s Rule of Law resolution as MSBA policy. He noted that this recommendation was supported by the General Policy Committee and the Public Law Section and also the Criminal Law and Military and Veterans Affairs sections. The recommendation was seconded and carried.
Action on the recommendation of the Committee to support the Women in the Legal Profession Committee Resolution to adopt the amended SAGE Best Practices
Mr. Larson then presented the General Policy Committee’s recommendation to support a resolution of the Women in the Legal Profession Committee for adoption of the amended SAGE Best Practices. The recommendation was seconded and carried.
Action on the recommendation of the Committee regarding a New Lawyers Section Resolution in support of On Demand CLE
Mr. Larson reported that the General Policy Committee had reviewed and supported a New Lawyers Section (NLS) resolution in support of a petition being filed with the Minnesota Supreme Court by the State Board of Continuing Legal Education (CLE Board), but that in light of additional input from other sources the Committee was offering an alternative resolution. He also noted that the MSBA Judiciary Committee had drafted a third resolution for consideration.
He explained that the CLE Board petition calls for attorneys to be allowed to earn 15 CLE credits of the required 45 in each three-year reporting period by participating in on-demand CLE programs. He noted that Minnesota CLE (MCLE) opposes the petition and that in light of that opposition, the Committee proposes that MSBA support a nine-credit limit on the number of CLE credits that could be earned through on-demand programs each reporting period and that the allowance for on-demand CLE be tried out experimentally over a four-year test period rather than given blanket endorsement. He observed that among the factors weighing in the Committee’s consideration were a sense that better quality CLE programming was available in person than on demand, that some attorneys—particularly those in greater Minnesota—have difficulty finding in-person CLEs they can attend, and that newer lawyers may have greater comfort than others with electronics and online, on-demand programming. Mr. Larson clarified that the General Policy Committee resolution differs from both the NLS resolution and the Judiciary Committee resolution, and that the General Policy Committee resolution was on the floor. He then invited Mike Unger, Chair of the Judiciary Committee, to present the Judiciary Committee recommendation.
Mr. Unger reported that the Judiciary Committee had been approached by NLS for support of their position. The Judiciary Committee voted to support the NLS, but felt that MCLE and MSBA should speak with one voice on the subject in regard to the petition of the CLE Board. He noted that MCLE has concerns about maintaining the quality of CLE programming in Minnesota and was inclined to oppose on demand CLE. But the Judiciary Committee saw merit in improving access to CLE by offering the on-demand option. He said the committee appreciated MCLE’s concern for maintaining program quality and saw the benefit of live CLE with human interaction. He noted further that little documentary back up is required to have a course approved for CLE credit in Minnesota and that the requirement for in-person “live” CLE biases programming in favor of Minnesota-relevant content. Permitting on-demand CLE will likely erode Minnesota-focused CLE programming. In sum, he advised that the Judiciary Committee proposal is an attempt to present a go-slow approach that doesn’t erode quality while acknowledging the advantages of reduced cost and convenience that go with on-demand CLE.
Mr. Larson called for discussion on the General Policy Committee proposal, noting that either the NLS proposal or the Judiciary Committee proposal could be substituted and that the General Policy Committee proposal could be amended. He clarified that the CLE Board was not expected to modify its petition in light of MSBA action but that MSBA and MCLE sought to compromise in the interest of speaking with one voice.
Justice Christopher Dietzen of the Minnesota Supreme Court announced that he would abstain from the discussion and any vote on this issue.
Sam Edmunds, Chair of New Lawyers Section, reported that the NLS has considered the issue for over a year, prompted originally by a petition of five attorneys for on-demand CLE programs to be credited. After the CLE Board produced their petition, including limitations on the number of on-demand CLE credits to be permitted and the time period for which on-demand courses would be accredited, the NLS supported the CLE Board petition. He observed that NLS had appeared before and worked with the General Policy and Judiciary committees and that the Section was troubled by the fact that the proposal was “watered down” to accommodate Minnesota CLE opposition.
Mr. Edmunds then moved to substitute the March 11, 2013 report and recommendation of the New Lawyers Section for the proposal of the General Policy Committee. The motion was seconded. He noted further that the motion addresses a part of CLE Board petition that has raised concern, namely, a requirement for a live presenter at video CLEs.
Phil Duran, President-Elect, noted that there are currently two petitions before the court, one calling for 45 credits of on-demand CLE and one for 15 credits. Voicing his reluctance to do so, he urged a vote against the NLS proposal, noting that the best way forward is to speak with one voice where possible, that there is “no magic in any of these numbers,” and that the profession is more effective when speaking in concert.
Katie Trotsky spoke in favor of NLS proposal. She observed that it is unfair to presume the quality of on-demand CLE will be less, arguing that the format of the program was the only issue, and urged that the Bar should not “drag our feet” in response to new technology but should affirm the purpose of the proposal, which she characterized as to make it easy to establish one’s competence. She further opined that it was unclear what a study period would reveal.
Speaking in opposition to the proposal, Sonja Peterson argued that the purpose of the trial period is to judge what are “reasonable restrictions” governing on-demand CLE. She noted that requiring presenters to be available to answer questions for two years following their participation in an on-demand program may be unreasonable.
Hennepin County Judge Ned Wahl commented that he opposed the NLS proposal on grounds that MSBA and MCLE need to present a unified front. He indicated he thought a nine-hour limit is a reasonable compromise.
Sonia Miller-Van Oort observed that while the proposal was being presented as the New Lawyers idea, their proposal would benefit all attorneys. Speaking in favor of the NLS resolution, she advised that over half of other states that require CLE allow attorneys to earn 1/3 of their credits or more online. Allowing only nine online credits (20%), Minnesota would be at the low end of the range with Indiana and Arkansas. She observed that Minnesota is progressive as a general rule. Noting that compromise is desirable, she expressed concern that the outward appearance of the proposed compromise was that it was based on MCLE financial interest.
Jaqui Dorsey, who identified herself as working with a small firm in Northfield, urged opposition to the NLS proposal, observing that despite being in greater Minnesota and having the experience of viewing online CLE programs, she prefers attending in person. She argued that the networking opportunities at in-person CLEs are valuable and that the information provided by MCLE is easy to understand and seems richer than that available on demand.
Charles Delbridge reminded the Assembly that the petition before the court is from the State Board of CLE and argued that weight and deference needs to be given to the Board’s petition.
Sam Edmunds, summing up the argument for the NLS proposal, said that NLS does not oppose compromise but that for the six months NLS considered on-demand CLE the proposal was for 45 credits. Accordingly, 15 hours as proposed by the CLE Board is already a compromise.
The question was called and the chair being in doubt, a standing vote was required. The motion carried 46-19.
Mr. Larson announced that the New Lawyers Resolution was on the floor and called for further discussion. A motion was made and seconded to amend the NLS resolution by appending the fourth bullet point from the General Policy Committee recommendation (addressing the requirement for a moderator at online CLEs) to the NLS resolution. The motion was seconded and the amendment carried.
A motion was then made and seconded to amend the resolution to urge the Minnesota Supreme Court to evaluate the effect of on-demand CLE on the quality of CLE being offered after a reasonable time. Discussants noted that the earlier adopted recommendation regarding course moderators would provide that a moderator would not have to be present for the entire time of the course and wondered whether moderators would be required to be available to answer questions for a full two years following the course. Asked if by asking the court to evaluate the impact of on-demand programming on the quality of CLE over time we weren’t functionally inviting the court to tell MSBA to do the evaluation, Mr. Unger responded that the purpose of the amendment was simply to see that some evaluation was done and assure that the quality of programming was in focus as the court considers the impact of the proposed changes.
The question was called, and the motion to amend carried.
Mr. Larson then presented the New Lawyers Section resolution as amended: Bill Jepsen, of the Minnesota Association for Justice, advised that he serves on the CLE Board and that he opposes on demand CLE. “Nothing stops me from doing my work while watching on demand/online CLE,” he said. “Having colleagues present keeps us honest but on-demand, online programming is a poor way to do CLE.”
The motion was then voted and carried.
Action on the recommendation of the Committee to support a Resolution to Amend the Standards for Criminal Law Certification
Mr. Larson presented the recommendation of the General Policy Committee for action on a resolution to amend the Standards for Criminal Law Certification. He observed that the proposal would bring requirements for Criminal Law Certification in parallel with those for other MSBA-sponsored certification programs. The motion carried.
X. Governance Committee
Sonia Miller-Van Oort, Chair, advised that the Committee, at the request of the MSBA Council drafted a conflict-of-interest policy for Assembly members, the former policy now being applicable to the Council as the Association’s governing board. She reported that the committee is also considering whether MSBA Bylaws allow for Assembly committees to have subcommittees and whether members of such subcommittees need to be members of Assembly. A further issue under discussion is how best to utilize the talents of past presidents of the association.
Action on the recommendation of the Committee recommending Assembly approval of a conflicts of interest policy for Assembly members
Ms. Miller-Van Oort described the proposed policy as one of disclosure regarding the individual member’s ability to exercise independent judgment. It would require that members identify themselves by name and affiliation when speaking before the Assembly to identify potential conflicts of interest and would give the member the option to recuse. The Assembly could vote to require recusal if the member declined to do so. The MSBA President would be required to present the policy at each Assembly meeting. The recommendation of the committee was seconded.
Discussion turned on questions regarding the scope of the interests that would require disclosure and the threshold for recusal. Members noted possible issues that might arise involving client confidentiality, distinguishing a conflict in cases where one’s expertise and experience have informed one’s opinion, and how to effectively represent one’s constituency, as in the case of minority bar associations, for example, while simultaneously meeting the policy’s requirements for fealty to the interests of the MSBA. Acknowledging that individuals might have difficulty discerning the threshold for recusal, members noted that requiring disclosure would suffice since the Assembly could require recusal if they believed it to be necessary. The recommendation was voted and carried.
XI. Judiciary Committee
Mike Unger, Chair, reported that the committee is actively considering the issue of judicial selection and MSBA’s current policy on the subject. He indicated that the committee is expected to meet at the close of the legislative session to make its recommendation to the Assembly on this subject.
Action on the recommendation of the Committee to support S.F. 41, prohibiting discrimination in jury selection presented by MSBA Human Rights and Diversity committees
Mr. Unger then presented the committee’s recommendation to support S.F. 41, which would add “marital status and sexual orientation” to the list of characteristics which may not be used as a basis for excluding persons from jury service. Mr. Unger that the committee had added a proviso to their recommendation to clarify that the statutory provision is understood to affect the jury system generally, not the selection process in the courtroom which is within the jurisdiction of the court and not the legislature. He noted that the Legislative Committee has also acted on this matter and invited comment from Thad Lightfoot, chair of the Legislative Committee. Mr. Lightfoot advised that the Legislative Committee has approved the language of the Judiciary Committee recommendation and urged support for passage of S.F. 41 and the companion House File. He noted that the Legislative Committee sees a need for rule changes to implement the terms of the bill but sees it as prudent to wait for legislative action before moving on the rules. The joint proposal of the Judiciary and Legislative committees was then voted and carried.
XII. Legislative Committee
Thad Lightfoot, Chair, reported that the committee is considering MSBA’s position on judicial selection and will have a recommendation on this subject for the June Assembly. With respect to the current legislative session, he advised that funding bills for the Judicial Branch have passed both houses with recommendations for increases for the courts, legal services, and public defenders. Slight differences between the House and Senate bills are to be worked out in conference. Omnibus tax bills have been prepared and despite earlier calls for extension of the sales tax, none contains a sales tax on legal services. The current judicial election bill is not expected to move in this session. Of the bills identified as priorities by MSBA sections, the Real Property bills have passed; the Probate and Tax bills are believed likely to pass but have not yet done so. Quoting MSBA legislative director Bryan Lake, Mr. Lightfoot summed up by saying, “We have spent significant time patching up lousy laws.”
Action on the recommendation of the Council recommending the Assembly approve the Minnesota CLE 2013-14 budget
Phil Duran, President-Elect, reported that the Council recommends adoption of the 2013-14 budget for Minnesota Continuing Legal Education. The recommendation was seconded and carried.
Action on the recommendation of the Council to reaffirm the MSBA previously established positions and adopt this resolution supporting removal of legal barriers at all levels of government to civil marriage between two persons of the same sex
Mr. Duran then reported that the Council recommends that the Assembly reaffirm MSBA’s previously established positions and adopt the Council resolution supporting removal of legal barriers at all levels of government to civil marriage between two persons of the same sex. He noted that this position, when adopted by MSBA in 2010, was not brought into the six-year cycle for renewal as a regular policy. The recommendation was seconded and carried.
XIV. New Business
There was no new business.
President Enger called members’ attention to the announcements in the agenda and noted especially the call for individuals from greater Minnesota to enter their candidacy for the position of MSBA Secretary. It was noted the application deadline has been extended from May 3 to May 17. Members were encouraged to help find candidates for other openings as well.
The meeting was adjourned at 2:45 p.m.
Michael W. Unger