March 20, 2009

FAMILY LAW SECTION
EXECUTIVE COUNCIL MEETING MINUTES
March 20, 2009

Brenda L. Storey

ATTENDANCE:  David Littman, Melissa Nicoletti, Joan McWilliams, Terri Harrington, Ann Gushurst, Kevin Sidel, Robin Beattie, Bob Malman, Denise Cook, Marie Moses, Beth Henson,
Jackie St. Joan, John  Eckelberry, Rob Hinds, Trish Cooper, Steve McBride, and Brenda L.
Storey.

ATTENDING  BY PHONE:  Deb Anderson, Mary Jane Cox, Carl Graham, Bonnie Schriner, and Marc Kaplan.

EXCUSED ABSENCES:  Richard Zuber, Meredith Cord, Cyndy Ciancio, Jen Feingold, and Kathryn Beck.

BASIC SKILLS SCHOLARSHIP FUNDS CLARIFICATION: David Littman asked that this issue raised at prior meetings be held until this March 20, 2009 meeting, so Brenda Storey
could address.  Brenda advised that it does not seem to be a problem with the minutes, but rather the underlying issue.  Brenda advised that she understood Fran Fontana to have really raised the issue.  Brenda communicated with Fran that this year’s winner had volunteered for a Pro Bono
case.  Brenda then read Fran’s February 13th 2009 email: “It sounds like the implementation this year went very well and if that continues to be the case you are correct.  Perhaps a friendly amendment could be that in order to be eligible for the scholarship, the attorney needs to have agreed to take a volunteer case.  That would be a wonderful way to honor Barb’s memory.  Perhaps given the discounted tuition, that would open it up to two scholarships.”

A friendly amendment was made to the prior vote, to have the eligibility conditions include taking a Pro Bono case.  Ann Gushurst so moved and it was seconded by Beth Henson.
Questions arose about why the Pro Bono case was part of the seminar.  Brenda discussed Barb’s
intention for a Pro Bono case to be taken by attendees in exchange for a strong faculty and reduced tuition.  John Eckelberry explained the mentorship opportunity that was also offered to the attendees.  Approved unanimously. 

APPROVAL OF THE MINUTES: Carl Graham moved for approval of the February
Executive Council Meeting Minutes.  Kevin Sidel seconded, and the vote carried.

AMICUS COMMITTEE: Mary Jane Cox requested a vote to support the committee filing a brief with the Amicus Committee of the Colorado Bar Association.  The summary of the argument is that the Colorado Court of Appeals in People v. Gabriesheski held that the Guardian ad Litem (GAL) may not disclose conversations with a minor child without the child waiving the attorney-client privilege.  The Appellate Court relied on Chief Justice Directive
 
04-06 which requires all attorneys appointed as a GAL or child’s representative to be subject to all the rules and standards of the legal profession including the additional responsibilities set forth by Colorado Rule of Professional Conduct 1.14.  That rule provides that when an attorney determines a client with diminished capacity is in need of protection, the attorney is to seek the appointment of a GAL, conservator, or guardian, or the attorney is to reveal only those parts of conversations without the client’s waiver.   The directive and the rules place the attorney in the position of having to evaluate the potential harm to the client and to ultimately decide which action should be followed to in making a disclosure, which subjects the attorney to possible discipline by the OCR and/or the Colorado Supreme Court  and also civil liability.
Colorado Case law, statutes and Chief Justice Directives require that a GAL represent the best
interests of a child.  If a GAL is held to a strict interpretation of the attorney-client privilege, the GAL is placed in an impossible conflict in fulfilling his or her duty.  A lawyer representing a client with diminished capacity, which includes a child’s representative has the authority under R.P.C. 1.14 to request the appointment of a GAL.  The GAL should then be exempt from R.P.C. 1.6.  With revisions to R.P.C. 1.14 and 1.6.,  Attorneys will accept appointments as GAL’s without fear of violating ethical rules and will be able to serve the best interests of clients with diminished capacity which includes children.  The Colorado Supreme Court is the proper branch of government to clarify this issue by reversing the appellate decision in People v. Gabriesheski and by revising CJD 04-06 and R.P.C. 1.14. 

As the actual letter regarding this brief and the draft brief were only provided to council shortly before the meeting, it was requested that council members review the brief and then an email vote would be taken.  Council did further discuss the underlying issues.  David Littman advised that Judge Holmes is appointing CLR’s more regularly for older children in cases where a CFI had previously been appointed.  The question was raised as to whether, when a CLR or GAL are testifying, the parties would be entitled to their file and/or records.  The response was that a CLR is a party, so records are not disclosed.  Ann Gushurst queried whether the brief would include synchronizing the meanings of different roles, such as Guardian ad Litem’s and CLR’s across the board do the same things, act in the same capacity in all contexts.  Mary Jane clarified that the brief was limited to what the issues in the underlying cases are.  If the council votes to approve the position offered by the committee for the brief then it would go to the CBA for approval.  Our committee brief would then be sent by the CBA to other sections who would  find it to be relevant such as ethics and juvenile sections.    Mary Jane Cox asked for cost reimbursement from the section in the approximate amount of $400.  Rob Hinds so moved.  It was seconded, and it was approved.  Mary Jane Cox is to submit the bills to Melissa, who will reimburse Mary Jane.

Marie advised that Cert. had been granted on the Schelp.  That case is regarding 16.2 and the reach back for five years pre-dating the rule change.  It was also advised that Cert. was granted on the Thornhill case.

BUDGET: Discussion was had, with Brenda and Melissa leading the discussion, as to the
proposed budget for the Family Law Section.  The proposed budget had been sent out with the minutes and in looking at each of the categories it was explained that we needed to correct the categories to show 2006/ 2007, 2007/2008 and proposed budget for 2008/2009.

It was also explained that the suggested budget for 2008/ 2009 was based on the prior two years’ numbers as well as any new information that we had.  As to the “administrative fee,” that is a fixed amount as of July 1st.  The “award expense” is for the Icon award and the gift to the outgoing chair.   The “bench book expense,” we are showing it at about $3,500.00, but we are anticipating income of $6,500.00.  That is contingent upon it actually being done this year, and us being able to do a first run by June 30, 2009.  We are assuming that 100 copies will be made and 100 will be sold in just that one month of sales.  The “council meeting phone expense” is for our meeting as well as for the luncheon expense.  The reason that the numbers have gone up for the proposed budget for 2009, is that we are having more people calling in for our meeting as well as for the luncheon.  As to the “dues income” we have the bulk of it as of July, but then other ones  trickle in.  The “grants expense,” we are looking at $1000.00 for adoption day, $5,000.00 for CASA, $10,000.00 for CLE.  Richard advised last month that CLE is asking for $10,000.00, but that has not been approved as yet.  It also considers CU, who has not come to us this year; so we have no number in there.  But we did consider that and then the Ball expense, which the Family Law Section sponsors a table for the Ball each year.  The “judicial meeting expense,” the number is higher this year because we have never kept track of it separately before.  In prior years we just added that in as meal expense and now we have it broken down.  Under the “luncheon expense” you will see this year’s is only negative $2000, where the prior years were negative $6000 to $8000.  If you add the judicial meetings into that then the number would be closer, but now we just have broken it down.  The cost for the “lunch expense” is for the Pepsi Center and the council room.  “Miscellaneous expense” is simply for messengers.  The office supplies are council notebooks, and we also need to include cost reimbursement like Mary Jane requested. “Postage expense” is for lunch notices for non-email addressees.  “Scholarship expense” we have that for the Family Law Institute, the Family Law Basic Skills and the expenses for the annual AFCC.  Prior years, one or two people have gone.  This year Marie and David will be going, so that is what that dollar amount includes.  The “special events,” we do have the Pepsi Center loss from this year, but that will be addressed and we are not sure that those numbers are final.  Rob Hinds pointed out that his expert book expense is not included, and there is no income from that. So we will need to add into our budget the expert book (copy cost as well as the postage).

Brenda offered that it did not make much sense to have a budget for the 2008/2009 year, but it would make sense for the goal to be to have the budget approved for the 2009/2010 year, and using what we have for guidance.  Jackie St. Joan expressed concern that each year our expenses are getting higher and that we need to be monitoring that.  She stated that when we had a lot of money in our accounts, she was the one encouraging us to spend more of it, but she wants us to be very aware of how much we have increased our spending.  David responded that is the very purpose of us having the budget with anticipated expenses.  Then if it looks like we are about to be exceeding any of the category items, the treasurer would need to seek permission to exceed the budgeted amount.

Discussion was had as to what the role of the treasurer is and should be.  It was suggested that
the treasurer should monitor any expenses with an eye towards the budget guidelines.
 
A suggestion was made that a budget committee be created to consider the budget and to consider what all should be in it using what Melissa and Brenda have started, and also perhaps to expand the role of the treasurer.  Bonnie Schriner suggested that the treasurer could form a committee if he/she thought it was needed.  Beth Henson offered that it would make sense that one consistent person be on a budget committee as the treasurer comes in brand new and then rotates out a year later.  Jackie St. Joan suggested that the treasurer look ahead if the dues are going down, see that the requests are high, then bring requests to the Executive Council for modifications to the budget.  Another idea was suggested that the By-laws be amended to include more specifics for the treasurer or for the officers in general.  Kevin Sidel offered to help as well.  Ultimately it was suggested that a budget committee be formed now to look at the budget for next year.  Beth Henson will chair and committee members will include Brenda Storey, Kevin Sidel, Jackie St. Joan and Carl Graham.  The goal of the committee is to have a conception of what they want the committee to do and what the budget should be used for, what the budget should look like, and discussion as to suggesting amending the By-laws regarding the treasurer’s role.

TREASURER’S REPORT: Marie Moses moved to approve the treasurer’s report.
It was seconded.  The vote carried.

There was clarification that the luncheon expenses did not include January and February. There is a question whether the Nuggets loss numbers are all in the latest treasurer’s report.

LEGISLATIVE COMMITTEE UPDATE: Marie advised that the UPA has been withdrawn for this year.  There were two parts to it.  One was the findings/fleshing out assisted reproduction
technology.  She stated that no one on the legislative committee has looked at that component.
She did ask that executive council members look at the proposed legislation and bring any concerns, comments, support to the legislative committee.  The second part of the UPA proposal was regarding parentage determination.  It was found by our committee to be far reaching and covered a lot of material, so we needed more time to look at it.  John Eckelberry said that perhaps the drafters would be separating the two components. Luckily enough it was not rushed through.

Marie advised that the increase in domestic filing fees will probably pass, and that is one that we opposed.  The parenting coordinator immunity proposal seems to be still moving forward after a few amendments have been proposed and adopted.

FLI  -UPDATE: Marie Moses advised that they are in the process of finalizing the schedule.  She did advise that they are having one major change this year.  There will be no luncheon program.  There will be a lunch, but no actual program or presentation.  She advised that mental health and juvenile law are both actively involved in the planning.

BENCH BOOK:  Marc Kaplan advised he is waiting on two more chapters to be done.  Marc and Bill King are doing the reviews on the ones that are already submitted and others are welcome to join them.  Please call Marc or Bill if you are interested.  The missing chapters included legal separation and it was decided that the current author would be given until March 30th to get the chapter done or Trish Cooper volunteered to complete the project.  Special thanks from us given to Trish.

EXPERT BOOKS: Rob Hinds advised that they are almost done.  They are going to allow people  additional time until the end of the month to submit proposals.  Melissa is going to get another email out to request submissions for other experts to be included in the book.  Rob will contact Melissa to get her to do the email.

JUDICIAL DISTRICTS LIAISON COMMITTEE: Ann Gushurst updated that they have a draft letter circulating.

NEWSLETTER UPDATE: Ann advised that they should have another newsletter out in a month, but there has been a reported problem that the FLS members are not getting the newsletter.
Ann proposed that we put the newsletter on Harhai’s list serve, and/or that we mail it again.
Either way, we would continue to put it on the web page also.  Marie joined in support of possibly having the newsletter put back into print and being mailed out. By the time of the next meeting Ann will have looked into the cost of printing and anticipated postage, and will report back to us.

BARRISTER BENEFIT BALL UPDATE: David asked for the status.  Brenda Storey advised that the emails have been sent out advising of the availability of the seats and asking for anybody
who met the requirements to apply.  It is reflected in the email to contact Brenda Storey by April first.  Another email was scheduled to go out the week of or the week following the March Executive Council Meeting.  Already five people have responded.  From all people who respond and meet the criteria, five winners will be drawn from a hat and will be notified.
 
NUGGETS SPECIAL EVENT:   David Littman and Bob Malman discussed the fact that this year’s event resulted in a loss of about $1,600.  Many who initially indicated that they would be interested did not actually purchase the tickets when they became available.  The idea is to choose a game in the Spring next year, take orders the previous fall and only do that many
tickets.  It was also suggested that we need to address the food.   
 
MENTORING: John Eckelberry advised that the dinner last week went well and they had a good turnout.  There were about 64 attendees, which was half attorneys and half law students.
There were double young lawyers in attendance from the year before and that has been  the committee’s push.  John stressed that they need more mentor lawyers and if you are interested
get your information to John.

CBAYLD:  John reported that there was to be an Open House on the afternoon of the Executive Council Meeting.  John was attending on behalf of the Family Law Section trying to get people
to join the Section.  He will push the Family Law Scholarship and Kevin Sidel was going to get John the information about the scholarship criteria so John would have that available to him.

MEMBERSHIP: John Eckelberry advised that he is trying to get more members.

FAMILY COURT TASK FORCE: Steve McBride reported that they are trying to get their report to our Section by May.  Steve will work with Marie regarding the May luncheon to include the Family Court Task Force update with the legislative update.

MISC:  We were advised that the MDIC Gala Spring fundraiser was going to be May 1st, from 6 to 10 pm, and a flyer was provided.  If anybody is interested they should simply contact Terri Harrington.

ELECTIONS: We are in the process of reviewing those seeking election and we have twenty slots for ten positions. 

ADJOURNMENT: Bob Malman moved that the meeting be adjourned and it was seconded. 
So approved.