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REPORT FROM ABA ANNUAL MEETING IN BOSTON

ABA Watch reports live from the ABA Annual Meeting in Boston.
August 12, 2014

Chief Justice John Roberts

Chief Justice John Roberts addressed the House of Delegates to commemorate Magna Carta’s eighth centennial. He began by offering a brief history of the document. Certain provisions still present great significance today including due process, the separation of powers, freedom from arbitrary action, and our own 8th Amendment protections. He observed that we celebrate the anniversary for a full year because the events of 1215 marked commencement of a major undertaking in human history. Magna Carta laid the foundation for the ascent of liberty, but progress is not universal or irreversible.

He outlined three ways Magna Carta is relevant today.

First, especially in its early years, Magna Carta was evoked to foster government unity in times of crisis. It embedded the rule of law as a unifying force in English society.

Second, Magna Carta contributed to the rise of representative government. It signified an enlarged role for meetings of barons in council and imposed modern constitutional limits on the power of the king.

Third, Magna Carta kindled the Declaration of Independence. It inspired the Virginia colonial charter and laid the foundations of our legal system. Revolts against King George were launched to protect liberties traced to Magna Carta, which became a banner for rallying opposition to British rule. Magna Carta “would become a cornerstone in our own quest for freedom from British rule.” It became a building block for a nation bound by the rule of law, a political structure in which defined limits on the exercise of power even allow the powerless to assert rights and call for justice.

Magna Carta’s core principles of justice remain relevant today and are worth defending. No generation is spared its challenges. Chief Justice Roberts observed that we live in an era with sharp partisan divides within our political branches that have shaken our faith in government. While judges can bolster public confidence by exercising independent judgment, they also require lawyers’ skills of professionalism and hard work. He stated that “we in the judiciary” must look to the bar for broader assistance in maintaining the public’s confidence in the integrity of the justice system. He urged lawyers to transcend partisan debates and become problem solvers. Independent courts have ensured accountability to the law, assuring that “No person, no matter how high, is above the law.”

Outgoing ABA President

Outgoing ABA President James Silkenat offered his farewell remarks to the House of Delegates on Monday.

Silkenat cited several examples of progress during his tenure: The ABA fought against political attacks on lawyers for fulfilling their professional duties when representing unpopular clients. Diversity was advanced within the Association and the profession. The ABA began a dialogue with the NSA on the need to protect confidential attorney-client conversation. The ABA undertook efforts to monitor and oppose tax proposals to switch from cash-based to accrual-based accounting, which would raise compliance costs and force firms to pay taxes long before payment is received. Silkenat also declared that “voting rights are under attack in many states,” and the ABA has formed a task force and published a white paper to draw attention to these alleged assaults.

Silkenat also touched upon the immigration crisis as an unprecedented number of children flee to escape “violence, drugs, and death.” Members must “determine what we can do as lawyers” to improve the situation for those seeking asylum. Silkenat saw the crisis first-hand during a visit to San Antonio. He urged, “Our response should be consistent…with the principles of justice and due process.”

Silkenat also stated that the ABA has advanced conversations on gun violence. He teared up when remembering the children killed at Sandy Hook. To prevent future school shootings, he directed members to take action as lawyers and community leaders.

Finally, he drew attention to the “access to justice paradox” between the need for legal services for the poor while many law school graduates remain un- and under-employed. This has led to the ABA’s creation of a “Legal Access Job Corps.” A video entitled “Be the Change” details that even with a 431% increase in lawyers in the past fifty years, many Americans still cannot access legal services, breaking “the law of supply and demand.”  Solutions could include post-graduate fellowships in legal clinics, increasing networking opportunities to rural areas, and legal incubators.

Incoming ABA President

William Hubbard addressed the ABA House of Delegates as the new ABA president. He urged inspiration not just from Magna Carta and the framers of the constitution, but also from more recent ABA lawyer-leaders like Mortimer Caplin, William T. Coleman, Vernon Jordan, and Marcia Greenberger (founder of the National Women’s Law Center).

Hubbard outlined some of the challenges our society faces. He stated, “Our criminal justice system is breaking down.” Too many low-level offenders are in prison, and they face too many obstacles when returning to society as productive citizens, such as lifetime bans for voting and the lack of access for college loans. Budget constraints deny indigent defendants adequate assistance of counsel. Too many domestic violence victims do not have access to pro bono legal assistance. Immigration, declining civic education, gun violence, and the privacy vs. security debate are other pressing issues. Increasing access to justice will continue as a policy goal.

Legal Education

House of Delegates

Recommendation 103A, sponsored by the Section of Legal Education and Admissions to the Bar, “concurs in the action of the Council of the Section of Legal Education and Admissions to the Bar in making amendments dated August 2014 to the ABA Standards for Approval of Law Schools.” Former Arizona Supreme Court Justice Ruth McGregor presented an overview of the Council, which is the accrediting agency for J.D. programs in the United States. Its recommendations come after six years of review, dozens of meetings, and publication on the Council’s website. According to Justice McGregor, the recommendations will ensure J.D. programs will remain rigorous and three years long, be both practical and skills focused, and be more focused on outcomes. Revisions will also require law schools to make more data available for potential applicants. Paulette Brown of the Council emphasized that the Standards will be revisited on a regular basis and that the House of Delegates will be consulted in its deliberations. She asked for the House’s concurrence in the Council’s “long, in-depth, thoughtful, and comprehensive process.” The House concurred in the action.

Recommendation 103B, also sponsored by the Section of Legal Education, urged concurrence in the action of the Council of the Section of Legal Education and Admissions to the Bar to supplant the 2013 ABA Rules of Procedure for Approval of Law Schools. The Council modified the language of the Rules to reflect current implementation, to clarify ambiguous language, and to reflect revisions in the Standards. The rules were thus made easier to navigate. Very few substantive changes were made. The House concurred in the action.

Recommendation 103A-206, concerning Standard 206 and diversity, was also briefed. Language adding sexual orientation, gender identity, and disability to the Standard was not adopted because it was not an appropriate change due to the complexity of the issue. Questions of privacy, definition, and enforcement affected whether disability could be included as diversity criteria. These issues will be revisited in the future. Delegate Mark Agrast supported “inclusion” language because it required law schools to demonstrate a commitment to diversity. The current language, he asserts, failed to meet the criterions embodied by the ABA’s Goal 3. The Council’s omission sends an unintended signal that inclusion does not apply to the disabled and GLBT individuals in environments in which they are under-represented. Agrast was disappointed, but was heartened that the issues will be reviewed again in the future.

Recommendation 103A/305-2, concerning whether students could be paid for externships, was debated. Several speakers both for and against the Standard addressed the House. Judge Margret Robb said that incentives for students to receive paid externships could negatively affect many non-profit and government employers who could not afford to pay students. Delegate Tracy Giles observed that nothing in the rules prevented a student from paid opportunities. However, externship providers who cited the inherent conflict between the employer/employee relationship and the education requirements and duties made a powerful case that paid opportunities should also not be offered for credit. Professor Myles Lynk from Arizona State also noted that many public service externship providers would not be able to offer financial compensation due to a lack of resources.

The Law Student Division urged that the House send the recommendation back to be reconsidered. Delegates argued that the Standard would impede students’ opportunities for experiential learning. Because of the tremendous debt incurred by students in a weak legal economy, students need paid externships to reduce debt, which negatively affects their abilities to take lower-paid public service opportunities post-graduation. Young Lawyer Delegate Teddy Reese described how many former classmates are unable to find jobs and/or need to return home because of their high levels of debt. He asked that more credit be given to students, as many will exhibit responsibility if they receive paid externships for credit, stating “Don’t close that door in their face…They need a partner right now in society.”  He urged a broader conversation so students would not have to resort to working at a fast-food restaurant. Several delegates stood and applauded during his remarks. Lisa Dickinson of the Standing Committee on Professionalism also called for the recommendation to be referred back to the Council for further consideration. She affirmed that externships’ greater emphasis on practical skills training and relief from the exorbitant cost of legal education should be considered.

The House voted to refer the matter back to the Section by a strong majority. No changes will occur until the Council has time to reconsider and report back on their decision.

Special Panel on Legal Education: The States Get Involved

A panel discussed innovations in the states in legal education.

Chief Judge Jonathan Lippman from the New York Court of Appeals discussed how New York now requires 50 hours of pro bono service. “Service to others” is a core value of the profession, and New York wants to impress upon this principle to students. Clinical work fits the requirement. He contended that students are some of the biggest supporters of the requirement since they gain practical experience, and they help to solve the justice gap. New York’s pro bono scholars program allows students to take the bar exam in February of their 3L year if they devote their final semester to pro bono work. More flexibility in the law student experience—apprenticeship, long-distance learning, etc.—should also be offered.

Justice Rebecca White Berch from Arizona noted the drop in law school enrollment, which has had a dramatic effect on lower tiered schools. We don’t know whether that drop is due to the cost of legal education or a return on investment analysis, she stated. This drop, however, has helped students to gain greater financial aid because of less competition. Arizona has also experimented by offering the uniform bar exam. Long-term mentorships and initiatives encouraging public service have been offered, but they have not had much success. Arizona doesn’t require pro bono service for law school graduation; however, many students already complete and exceed those hours. Arizona also offers an option for students to take the bar exam early.

Matt Kerbis, from the Law Student Division and a recent DePaul graduate, urged greater adoption of the uniform law exam. Law students also support the option to take the bar exam early; however they are divided on pro bono requirements.