Bar Watch Bulletin for Monday, August 9, 2010

ABA Medal, ABA Presidency, House of Delegates

August 10, 2010

Today Bar Watch reports live from the ABA’s House of Delegates meeting in San Francisco.

ABA Medal

The ABA awarded the ABA Medal, its highest honor, to United States Supreme Court Justice Ruth Bader Ginsburg. 

In remarks to the House of Delegates, Justice Ginsburg discussed her involvement in the ABA, stemming back to the 1960s.  She observed how 1972 was a turning point for women in the legal profession, as female enrollment in law schools surged.  She attributed this to the number of men serving in Vietnam and the Nixon Administration’s policies urging affirmative action plans to increase female enrollment.  Justice Ginsburg’s involvement in the ABA continued throughout the 1970s, when she joined the ABA Journal and visited China as part of an ABA delegation.  She also served in the leadership of the Individual Rights & Responsibilities Section, the Amicus Curiae Committee, and the Standing Committee on Federal Judicial Improvements. 

Justice Ginsburg acknowledged how ABA support assisted her judicial career, as she recounted how President Jimmy Carter appointed her to the United States Court of Appeals for the D.C. Circuit in 1980.  Her affiliation with the ACLU was a roadblock in her confirmation, she noted, though her confirmation was assisted when she garnered the highest rating by the ABA Standing Committee on the Federal Judiciary.  She recounted how she also received the highest ABA rating when she was nominated to the Supreme Court.  Justice Ginsburg hoped that the U.S. Senate would return one day to the bipartisan collegial spirit that she and Justice Breyer experienced in their confirmations.

Carolyn Lamm Addresses House of Delegates

Outgoing ABA President Carolyn Lamm addressed the House of Delegates. 

The economic crisis, increasing globalization, the increased use of technology, and the increased speed of change are some of the challenges facing the legal profession and the ABA, according to Lamm.  She discussed some of these challenges and other initiatives that were priorities in her year as president.

Membership was one area of focus this year, with dues being reduced after the ABA midyear meeting.  Membership is up 80% among judges and 46% among government attorneys. 

The global economic crisis, something Lamm conceded she did not anticipate, was also a priority for the ABA this year.  Debt relief for law school graduates is now one of the ABA’s top legislative priorities.  The continued promotion of diversity in the legal profession was another priority. 

The ABA has tremendously increased its advocacy in Washington, according to Lamm.  Legal services funding and excluding the practice of law from the Consumer Protection Act were priorities.  The ABA has also supported the Gulf state bars with respect to the BP oil spill. 

According to Lamm, the 100 federal judicial vacancies are “intolerable,” and the high number of vacancies is beginning to affect the efficiency and fairness of the judicial system.  Lamm urged salary increases for federal judges because low pay compromises judicial independence. 

Stephen Zack Assumes ABA Presidency

Miami attorney Stephen Zack of Boies, Schiller & Flexner assumed the ABA presidency during Monday’s House of Delegates session.  [Click here for an interview with Zack published in February 2010 ABA Watch]  Carolyn Lamm introduced Zack, and she noted that he represented Al Gore in the 2000 election litigation.  Zack has served as a member of the ABA Board of Governors and as chairman of the House of Delegates. 

Zack observed it had been a tough year for the ABA, but the Association was “again poised for greatness.”  He acknowledged his law partner David Boies, and he thanked him for Saturday’s “inspirational” remarks.

He discussed responsibilities for the Association.  First, he spoke of the preservation of the justice system.  He discussed a crisis in funding the judicial system, stating, “We are fighting to establish the rule of law around the world, and we are in danger of losing it in the United States.  We are able to defeat our enemies abroad, but are we equally able to protect us within?”  He contended that the financial crisis has been devastating to the American justice system.  80% of the poor are unable to pay for a lawyer, and the foreclosure crisis has exacerbated the problem.  State budgets have closed court rooms and enacted freezes in judicial compensation.  He announced a bipartisan commission to study these issues, stating, “Today the ABA will set up a task force that will look at the preservation of the justice system and will be chaired by David Boies and Ted Olson and twenty of the most distinguished lawyers in this country.” 

Civics education is another responsibility for the ABA.  Two out of three high school graduates do not know the branches of the government, and, “[e]ven more troublesome, 75% of all Americans don’t know the Bill of Rights protects religious freedom.”  The government directs schools to “inappropriately” focus on teaching science and math, as opposed to civics.  He announced the establishment of the American Bar Academy, chaired by House of Delegates members Martha Tucker and Paulette Brown.  They will work with Justices Souter and O’Conner to help educate students about civics. 

Zack also lamented, “Unfortunately, every day our nation becomes more divided when it comes to human rights.  One of the issues that divides us is immigration.  We must be united, and we can be united.”  He observed that we are a nation of immigrants, and “we must protect the minority.”  Policies adopted by the ABA on immigration will be important in the year ahead.

Diversity will continue to be a goal of the ABA, and a Commission of Hispanic Rights and Responsibilities will be created.  Cesar Alvarez will chair the commission, with Emilio Estefan serving as an honorary co-chairman.  Hispanics are underrepresented in the ABA and in the legal profession, according to Zack.   

Zack also announced a fiduciary obligation for the Association to prepare for disasters.  Thousands of Americans wanted to help after Katrina, and the courts wouldn’t let lawyers assist because of the unauthorized practice of law.  The ABA’s Katrina Rule would supersede this.  Another disaster will likely occur, and “[w]e as a profession have a responsibility to be prepared.” 

A man-made disaster is also possible, and if habeas corpus is suspended, Zack queries, “What is the response of our Association?…Now is the time to reflect, now is the time to consider what our response should be, before the events overtake us.  We know at these times our liberty is most fragile, most at risk.”

Zack concluded, “Let us remember, history has taught us that we can have liberty and justice, or neither, for there is nothing in between.  We know in America that no man is above the law, and we now have the responsibility to make sure no one is beneath its protection. And when people ask today, who will speak for justice, we will answer. We will: the American Bar Association.”

House of Delegates Recommendations

The ABA’s House of Delegates considered several recommendations on Monday. Below is a summary of some of the resolutions adopted.

Recommendation 11-1, sponsored by Edward Haskins Jacobs, VI, urged an amendment to the ABA Constitution to “defend the right to life of all innocent human beings, included all those conceived but not yet born.”  Jacobs spoke on behalf of his proposal, noting it was his tenth attempt to urge the Association to adopt this amendment.  Brian Melendez, chair of the ABA Standing Committee on Constitution and Bylaws, stated that it was “inconsistent with the purposes of the [ABA] Constitution.”  He noted the Committee recommended that the proposal be offered as a recommendation with a report as opposed to an amendment.  The resolution was postponed indefinitely.

Recommendation 100A, sponsored by the Sections of Criminal Justice, Litigation, and the Standing Committee on Professional Discipline, “urges the United States Department of Justice to continue in its commitment to investigate allegations of professional misconduct on the part of the Department’s lawyers and to release as much information regarding completed investigations as possible, consistent with privacy interests and law enforcement confidentiality concerns.”  The recommendation was adopted. 

Recommendation 100B, sponsored by the Criminal Justice Section and the Young Lawyers Division, “urges trial and appellate courts, in criminal cases, when reviewing the conduct of prosecutors between ‘error’ and ‘professional misconduct.’”  The resolution is not designed to remove any protections criminal defendants receive against prosecutorial misconduct.  The recommendation is supported by both the National District Attorneys Association and the National Association of Criminal Defense Lawyers.  Brian Miller, a Texas delegate who is also a member of the Young Lawyers Division, spoke in opposition, contending that it encourages the courts to consider an issue that isn’t germane to the case.  The term “professional misconduct” is a term of art used for 75 years that appears in thousands of court decisions and should continue.  The resolution was adopted. 

Recommendation 100C, sponsored by the Criminal Justice Section and seven other cosponsors, “urges federal, state, territorial, tribal, and local governments to providing funding to state and federal public defender offices and legal aid programs specifically for the provision of advice about the immigration consequences of criminal proceedings to indigent non-U.S. citizen defendants, and about any available relief from such consequences.”  Stephen Saltzburg of the Criminal Justice Section stated that the resolution was offered in the wake of the Padilla v. Kentucky decision.  Additional resources are needed as many judges and lawyers lack knowledge of immigration law.  The resolution was adopted. 

Recommendation 104, sponsored by the Section of Litigation and 31 cosponsors, urges the adoption of the ABA Model Access Act, which is a model statute “for implementing jurisdictions to establish and administer a civil right to counsel.”  In 2006, the ABA adopted a policy regarding a civil right to counsel for such “basic human needs” as shelter, sustenance, health, safety, and child custody.  This recommendation will help implement that policy.  The goal is to expand legal services available to the poor.  Estimates are that only 20% of the poor are receiving legal representation in these areas.  The amount and source of funding for this “Civil Gideon” right is not specified in the Model Act, but it is left to the discretion of the states.  An amendment concerning the extent of offering free legal representation in child custody cases generated a robust debate.  Some were concerned that child custody cases in instances of domestic violence would not be sufficiently covered, with a disparate impact on mothers.  They also alleged the amendment was offered late, and it was not properly vetted.  Amendment proponents argued that its inclusion would help ensure Civil Gideon is adopted in the states, because the states may not wish to cover child custody legal expenses in routine cases due to costs.  The amendment failed.  An amendment to strike the language in the commentary concerning this amendment was defeated, with opposition from the Family Law Section.  Recommendation 104 was adopted. 

Recommendation 117, sponsored by the Task Force on Federal Agency Preemption of State Tort Laws and five other cosponsors, “urges Congress to address foreseeable preemption issues clearly and explicitly when it enacts a statute that has the potential to displace, supplement, or otherwise affect state tort law.”  Tommy Wells, past-ABA chairman, introduced the recommendation.  During his presidency, he observed that ABA policy regarding federal preemption had dated from 1988.  To see if any updates were needed, he appointed a task force to study preemption, with Tulane Law Professor Ed Sherman serving as chairman.  Professor Sherman stated that no drastic changes were proposed by the task force, as it only recommended more specific procedures for Congress and administrative agencies to follow.  The recommendation is limited to state tort law.  Wisconsin delegate Nathaniel Cade spoke in opposition.  He questioned why the ABA was taking a position on a hot button topic that members of the defense side of the bar disagreed upon.  He thought the ABA was being inconsistent, supporting federal preemption in some cases such as in the Arizona immigration case, while supporting state preemption in tort cases.  He thought this was the beginning of a slippery slope.  Stephen Saltzburg, speaking in support of the resolution, described the states as great labs of federalism.  He thought agency capture was of greater concern.  Randolph May, speaking on behalf of the Administrative Law Section, also spoke on behalf of the recommendation.  The recommendation was adopted.