Barwatch Bulletin for August 2012

August 7, 2012

Around the ABA Annual Meeting…

  • South Carolina Senator Lindsey Graham offered the Annual Meeting’s keynote address on Saturday.  He thanked the ABA for its work rating judicial nominees, stating “That service you provide the United States Senate is invaluable because in these politically charged times in which we live, you are a filter, sort of a wall, between people who are politically connected and somebody who should be on the bench.”  Senator Graham expressed concern about the judicial confirmations process, stating confirmation proceedings have become politicized events with little discussion on qualifications.  He stated, “The question is, are you qualified? It's stupid to pick on something you said in law school, and pick on this or pick on that. I'm not worried about judicial activism. I'm worried about Senate activism.”  While emphasizing he preferred conservative judicial nominees as a conservative Senator, he also stated, “If President Obama wins a second term, it is not appropriate for us to stop all of his nominees because we don’t adhere to his philosophy.”  
  • Sandra Fluke, the Georgetown law student who was criticized by Rush Limbaugh  because of her support for insurance coverage of contraceptives, participated in a panel on “Rush Limbaugh and a Law Student’s Encounter with Incivility; What is the Role of the Legal Profession?”
  • Marcia Greenberger was among the Margaret Brent Women Lawyers of Achievement awardees.  Greenberger, who is the founder and co-president of the National Women's Law Center.  Other recipients include California Supreme Court Chief Justice Tani G. Cantil-Sakauye, and Amy W. Schulman, the executive vice president and general counsel of Pfizer and president and general manager of Pfizer Nutrition.
  • John G. Levi, chairman of the Board of the Legal Services Corporation (LSC), spoke at the House of Delegates Monday afternoon.   Levi discussed the importance of the LSC and stated that the organization’s mission is the “preservation of a core American value: equal justice for all.”  Levi went on to say that LSC is in distress due to high demand for its services and “very stretched” resources.  According to Levi, “Legal aid programs are forced to turn away over 50% of people seeking aid because the programs don’t have the resources.”  He also discussed possible solutions to help supplement the lack of legal aid to those in need, including increasing pro bono work and using technology more efficiently to provide services and materials to people when personal consultation is not available.
  • Jack Elrod, ABA Executive Director, spoke on Monday afternoon to the House of Delegates.  The association was at its height of membership in 2007 and has been decreasing since then; however, the organization predicts that the downward trend in membership will end this year.  Elrod explained that the ABA depends on dues for about 2/3 of its general operating revenue.  Dues were more than $70 million in 2008, and this year they will be below $60 million. 

Bill Robinson Reflects on Presidency

ABA President Bill Robinson addressed the ABA House of Delegates on Monday morning.  During his presidency, Robinson said he was proud of accomplishing many of his diversity goals. He explained, “We have increased membership outreach to national bars of color, and have continued our commitment to increasing diversity in ABA presidential appointments.”  Robinson also commented on the ABA’s commitment to law students and young lawyers, as this group is “especially vulnerable” during this downward trend in jobs.  The ABA must continue to support and guide them as the profession and economy continue to change.

Robinson focused his remaining speech on the importance of state courts funding.  He noted that in 2011, 42 states decreased annual funding for state courts.  Notably, California state courts have lost $1.2 billion in funding.  He remarked, “Our courts are not another state agency or just a line item in a state budget; our courts by the Constitution are a co-equal branch” and should receive adequate funding.  He emphasized that an adequately funded court system is the key to constitutional democracy, and a constitutional democracy is fundamental to freedom.

Laurel Bellow Assumes ABA Presidency

Laurel G. Bellows assumed the ABA Presidency on Monday afternoon.  Bellows thanked Bill Robinson for his leadership and for “serving as a great role model for students and young lawyers who are “questioning their career choice” in this difficult time.  She also vowed to continue the fight for adequate state courts funding.  She stated that her vision for the ABA has been forged by her “experience as a lawyer, woman, and member of this organization, but tempered by what we currently face in this country.”  Bellows had a simple message for the delegates: “Lawyers matter.”  She maintained that, as lawyers, “We are the first responders when liberty and justice is in peril. We promote diversity and equal opportunity.  We can and do change the priorities of society.  And we fight to ensure that the rights of others are respected.”

Bellows claimed that some problems in our society persist because “victims are not noticed,” and victims are ignored because “opponents of change have too much power.”  Bellows outlined several of her goals as president of the association, starting with her first goal to end human trafficking in the US.  She said that there are “100,000 U.S. citizens forced into sex and labor for the profit of their captors,” and “there are few places in the U.S. untouched by modern-day slavery.”  Other goals for her presidency include strengthening cyber security, ensuring adequate state courts funding, increasing diversity, and examining and possibly reforming legal education. Bellows closed her remarks by declaring, “The ABA will continue to be universally recognized as the leading voice of the legal profession.”

House of Delegates Action

Recommendation 10A, sponsored by the Illinois State Bar Association and at least 12 cosponsors, “urges the American Bar Association to reaffirm existing ABA policy adopted in July 2000 that: (1) sharing legal fees with nonlawyers and the ownership and control of the practice of law by nonlawyers are inconsistent with the core values of the legal profession; and (2) prohibitions against lawyers sharing legal fees with nonlawyers and from directly or indirectly transferring to nonlawyers ownership or control over entities practicing law should not be revised.”  John Thies, a delegate of the Illinois State Bar, introduced the recommendation and emphasized that as the legal profession becomes more globally focused and lawyers do more work with firms oversees, it is important that the ABA reaffirm its stance on fee sharing and firm ownership by non-lawyers.  Thies said that the message they are trying to send is that “this association is not going to water down its standards” just because lawyers in other parts of the world have different policies.  David Wolf of the Young Lawyers Division, a cosponsor, argued that opponents of the recommendation “do not object to the actual language of the resolution,” but instead they object to the resolution based on the argument that it is “premature” and should not be taken up until the next meeting in February 2013. Other proponents asserted that this recommendation does not prevent future proposals from being submitted or prevent the commission from moving forward with this issue at the next meeting; instead, this resolution only reaffirms its standing policy.

Opponents of the proposal alsoclaimed that one of the main problems with recommendation 10A is that it seeks to cut off all discussion and debate about fee sharing and firm ownership, particularly before all of the analysis and reports on these issues are completed.  H. Thomas Wells Jr., an opponent of the recommendation and former ABA president, said that telling members of the House to not look at or take up an issue is no way to run an association. He emphasized that the Commission on Ethics 20/20 should have the opportunity to appropriately debate the issues, and this resolution is “insidious” because it is harmful but seductive by sending  a “chilling message” to the Commission.  Missouri Delegate Maury Poscover agreed, and reminded the delegates “voting for a motion to postpone this recommendation is not a vote to support fee sharing, it is merely a motion to let the commission do its job.”  The motion was postponed indefinitely with some opposition.

Recommendation 11-1, sponsored by Edward Haskins Jacobs VI, proposed amending the constitution to include language “to defend the right to life of all innocent human beings, including all those conceived but not yet born.”  Jacobs explained that he has made this proposal because the “ABA stands for defending liberty and pursuing justice” and the Association “claims to speak for the American lawyer, and it is critically important that the American lawyer stand up for the rights of the innocent.”  The motion was postponed indefinitely, with some opposition.

Recommendation 11-4, sponsored by Min K. Cho of Florida, proposed a constitutional amendment “to change the requirement that if the bar associations of a state are entitled to four or more delegates, at least one delegate ‘must be less than 35 years old,’ to now require that that delegate ‘have been admitted to practice in years, or be less than 36 years old.’”  Cho explained that the reason for this proposal is to keep the House of Delegate’s “young lawyer” membership consistent with how the ABA Young Lawyers Division and other state and local bar associations define a “young lawyer.”  Furthermore, Cho points out that the adoption of this recommendation would also allow more “young lawyers” to serve in the House of Delegates and it increases the qualified applicant pool.  The recommendation was adopted.

Recommendation 100, proposed by the Tort Trial and Insurance Practice Section, “urges all state, territorial, and local legislative bodies and governmental agencies to adopt comprehensive breed-neutral dangerous dog/reckless owner laws that ensure due process protections for owners, encourage responsible pet ownership and focus on the behavior of both dog owners and dogs, and to repeal any breed discriminatory or breed specific provisions.”  Katherine O’Neil, Chair of the Commission on Disability Rights, spoke in support of the recommendation.  She claimed that in some states, law enforcement can come to your house if you have a certain breed of dog deemed “dangerous” such as a Rottweiler, Pitbull, or German Shepherd.  Authorities could then seize the “dangerous” dog from your home and execute it.  The recommendation was adopted with no opposition.

Recommendation 102, proposed by the Commission on Immigration, “urges the American Bar Association to adopt the ABA Civil Immigration Detention Standards.”  Supporters of the recommendation pointed out that “the immigration detention and removal system is, by law, a civil system.” The majority of the detainees in removal (deportation) proceedings “are not facing criminal trials or serving prison sentences.”  However, the U.S. immigration detention system usually holds these detainees in jail or jail-like facilities that follow the standards of the American Correctional Association for persons awaiting criminal trials.  The supporters contended that many of these facilities are over-crowded and do not provide basic necessities to detainees.  Karen Grisez, Chair of the Commission on Immigration, reiterated that “immigration detention is not criminal, it is civil; therefore detainees should not be held under criminal conditions.”  She and the other supporters asserted that the recommendation provides guidelines to ensure that detainees are treated “humanely” and given access to health care, legal services and information, religious services, adequate living and recreation space, visitation, and other “basic necessities.”  The recommendation was adopted with no opposition.

Recommendation 105D, proposed by the Commission on Ethics 20/20, “adopts the Model Rule on Practice Pending Admission, and amends the ABA Model Rules of Professional Conduct dated August 2012, to enable lawyers to practice in a new jurisdiction while the lawyer actively pursues admission through one of the procedures that the jurisdiction authorizes.”  Jequita Harmon Napoli, an opponent of the recommendation, characterized the proposal in 105D “more as an admissions rule” and argued that acknowledging the increasing mobility of lawyers does not change the fact that we are each required to practice in a specific jurisdiction.  She maintained that she was not worried about the majority of people who practice while waiting for admission, but that she was worried about those who practice for 365 days and then are denied admission.  In her closing remarks, she stated at this was a “complicated issue” and that she was “not suggesting that portability is bad” but she is “suggesting that this is the wrong way to support mobility.”  Delegate Stephen Gillers, a member of the ABA 20/20 Commission, supported the recommendation and explained that in an ideal world, a lawyer would “get permission to practice in a new jurisdiction before moving to that jurisdiction, but sometimes that is not possible” if an immediate move is required.  He argued that all rules have advantages and risks, and the advantages of this recommendation far outweigh the risks.  John T. Berry of the National Organization of Bar Counsel also spoke in favor of the recommendation, asserting that every protection is in place to make sure that this rule is appropriate and nothing will “go wrong” when allowing lawyers to work before being admitted.  The recommendation was adopted.

Recommendation 105E, proposed by the Commission on Ethics 20/20, “amends the ABA Model Rule for Admission by Motion dated August 2012, to allow lawyers to qualify for admission by motion at an earlier point in their careers than the current Rule allows.”  Paula Boggs, a Washington state delegate, supported the amendment, calling it “pro lawyer and pro our profession.”  She argued that the amendments “will enhance a firm’s ability to serve its clients well” and in today’s unsteady economy when many lawyers cannot find jobs, this resolution encourages lawyers “to take jobs and keep them.” The recommendation was adopted without opposition.

Recommendation 105F, proposed by the Commission on Ethics 20/20, “amends the ABA Model Rules of Professional Conduct dated August 2012, to provide guidance regarding the detection of conflicts of interest when lawyers move from one firm to another, firms merge or there is a sale of a law practice.”  The recommendation was adopted.

Recommendations 107A-D were proposed by the Criminal Justice Section and were all adopted without opposition.