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Barwatch Bulletin from August 14, 2007

August 17, 2007

U.S. Attorneys Firings

Recommendation 10C, sponsored by the Bar Association of the District of Columbia, "supports in principle that the appointment, retention and replacement of United States Attorneys and career government attorneys, and the exercise of their professional judgment and discretion, should be insulated from improper partisan political considerations." The recommendation also urges the ABA to form a task force or commission to study the matter. Advocates argued that the Recommendation was necessary for "fair administration" and "justice."

Robert Weinberg from the sponsoring entity emphasized that this was a "professional issue," not a "partisan issue." He also remarked that "improper partisan political considerations" were an issue in previous administrations, including under President Jimmy Carter. He stated that the Board of Governors and new ABA president Bill Neukom would organize a task force or commission to investigate the matter.

District of Columbia Bar Delegate Lois Schiffer urged the recommendation's passage to "prevent the politicization of the administration of justice." She noted with dismay how the institution of justice has veered off course at DOJ. Schiffer offered an amendment that would have slightly changed the wording of the recommendation to "acknowledge that the appointment of U.S. attorneys was a political act." One questioner asked Schiffer what would the proper political considerations be to hire U.S. attorneys, which she declined to answer as she was merely making an amendment. The question was never answered.

Steve Saltzburg spoke in opposition to Schiffer's amendment. He maintained that the ABA should oppose language, stating that "of course" politics played a role in hiring decisions. Only the uses of "improper partisan political considerations" were troubling. Neal Sonnett-declaring he was a "well-known Democrat"-also spoke against the amendment. The amendment failed.

The recommendation was adopted with little dissent.

Ledbetter Decision

Recommendation 302, which "urges Congress to amend Title VII of the Civil Rights Act of 1964, 42 U.S.C.§ 2000e-5(e), to ensure that in claims involving discrimination in pay, the statute of limitation runs from each paycheck reflecting an improper disparity." Proponents claimed that we "rely on [the Civil Rights Act] daily." According to sponsor Pamela Roberts, the Supreme Court embraced a "new barrier to a discrimination-free workplace" in the Ledbetter The decision adopted a restrictive interpretation of the law, rejected the practices of the EEOC, and reversed "strong" precedent. According to Roberts, this recommendation would urge Congress to adopt a pre-Ledbetter state of the workplace. This legislation would be narrowly tailored to allow "victims of pay discrimination to pursue their rights." According to Roberts, "Change in today's society presumes progress. This [decision] is a huge step backward." Today was a day for the ABA "to unleash" its voice against discrimination.

An amendment was proposed to make the recommendation consistent with the Fair Pay Act with respect to age and federal disability; the amendment was adopted.

One opponent, who described himself as "a reformed labor lawyer," urged the House to examine the recommendation more carefully. He added that there "are state law remedies available." He expressed concern that "we are rushing into this area" and argued that there was insufficient opportunity for study and consideration by other ABA entities, due to the late filing.

Former ABA president Robert Grey also endorsed the recommendation. He contended, "This is about fairness, this is about equity, this is about a law that has been in place for twenty years." He added, "We don't need to study it... this is about protecting our citizens against the bad guys." Grey argued that if lawyers want to appear in favor of fairness, they should adopt this recommendation. ABA Commission on Women in the Profession member Robert Weiner also spoke in favor of the recommendation. He explained that various Sections had reviewed the recommendation and that state remedies were not adequate. The claims that there would be confusion and discrimination resulting from this recommendation are incorrect. "You are likely to lose your rights before you even you know you had rights to protect," Weiner added.

Another opponent called the recommendation a "rush to judgment." He stated it was "important that the other side of the story be told." Responding to Grey's comments, he stated that this recommendation would regulate the "good guys" too. He described the recommendation as "pro-discrimination," and he feared it would encourage people "to sit on their hands" in the face of discrimination. He also expressed concern that record retention and other practical issues were being ignored by the sponsors, and urged further study. He maintained that it would be a "big mistake" to move forward at this time.

Bill Neukom, the incoming ABA president, spoke in support of the resolution as well. Others lending support include past ABA presidents Karen Mathis and Michael Greco, incoming president-elect Thomas Wells, and all three candidates for ABA president-elect 2008-09.

The recommendation was adopted.

Incoming President-Elect Thomas Wells Addresses House of Delegates

Thomas Wells, the new president-elect, addressed the House. He cited a common "community of purpose. The ABA was committed to the law profession's "excellence" while supporting a set of "common core values." He emphasized the following core values: pro bono service; encouraging corporations to support women lawyers; coordination with bar associations overseas; and aiding youth and youth-at-risk. Wells cited his work with the YMCA as one example of the power of lawyers "to change lives."

Wells lauded the Rule of Law, saying it was "central to what all lawyers do." He stated the ABA would continue to work on the programs that are "central to our core values" and crucial to concerns "we all share." Wells then listed core issues of the ABA: protecting the attorney/client privilege; performing pro bono work even when a Pentagon official "questions the patriotism" of pro bono lawyers representing Guantanamo detainees; urging sufficient legal aid funding; promoting diversity in law school; and fighting for judicial independence when politicians criticize judges for "politically unpopular" decisions. He added, "Working together, we do make a difference."

Wells referenced the 2008 presidential elections, stating, "We will be working with a fresh Administration" so the ABA must "hit the ground running" with Washington. Wells concluded, "Let us focus on our common vision as lawyers and as friends," and he implored, "Let us work together to make, not a dollar, but a difference."