July 16, 2019

Report Regarding The 2013 ABA Mid-Year House Of Delegates Meeting In Dallas, Texas

Troy RackhamBy Troy Rackham

I have the privilege of serving the Denver Bar Association as a delegate to the American Bar Association (“ABA”) House of Delegates. The ABA House of Delegates met at the ABA’s midyear meeting held in Dallas, Texas on February 11, 2013. The agenda was relatively light. This Article summarizes the House of Delegates events at the midyear meeting and the action taken by the House.

The House opened with a welcome speech by Senator Kay Bailey Hutchinson. Senator Hutchinson thanked the House for its leadership in maintaining the integrity of the profession and ensuring the quality of judges.

ABA President Laurel Bellows also spoke to the House. She thanked the House for the privilege of serving as President. She discussed the concept of justice as fairness. She raised important questions on how best to improve the quality of justice delivered and how to make justice more accessible. She also discussed the Gender Equity Task Force and commented on the fact that it is addressing issues of unfairness to women, including inequity of pay to women lawyers. Additionally, President Bellows discussed human trafficking and the ABA initiatives relating to the epidemic of human trafficking. Finally, President Bellows discussed promoting programs supporting law students and young lawyers, as well as reforms to legal education.

After hearing some other speeches, the House got to work on resolutions submitted to the house. First, the House passed Resolution 108, which encouraged practitioners, when appropriate, to consider limiting the scope of their representation, including the unbundling of legal services as a means of increasing access to legal services. The House also considered and approved three resolutions relating to administrative law.

Additionally, the House considered and approved Resolution 109 which supported the position that United States Bankruptcy Judges have the authority, upon the consent of all the parties to the proceeding, to hear, determine, and enter final orders and judgments in those proceedings designated as “core” within the meaning of 28 U.S.C. § 157(b) but that may not otherwise be heard and determined by a non-Article III tribunal absent consent. The House voted to revise the resolution and later approved it.

The House considered nine resolutions relating to issues of criminal justice. Those were as follows:

  • Resolution 104A – Indigent Defense. The Criminal Justice Section urged the adoption of Resolution 104A, as revised, which urged Congress to establish an independent federally funded Center for Indigent Defense Services for the purpose of assisting state, local, tribal and territorial governments in carrying out their constitutional obligation to provide effective assistance of counsel for the defense of the indigent accused in criminal, juvenile and civil commitment proceedings. The House adopted the resolution as revised.
  • Resolution 104C – Prohibiting Retaliatory Discharge Against Public Defenders. The Criminal Justice Section also urged the House to adopt Resolution 104C. Resolution 104C urged state and local governments to enact legislation to prohibit the retaliatory discharge of a Chief Public Defender or other head of an indigent defense services provider because of his or her good faith effort to control acceptance of more clients than the office can competently and diligently represent. The House adopted the resolution.
  • Resolution 104D – Increased Funding for Prosecutor Training. The Criminal Justice Section moved the House to adopt Resolution 104D, which urged the federal government to restore, maintain, and, where appropriate, increase funding to organizations which provide training to state and local prosecutors, to better promote justice, increase public safety, and prevent wrongful convictions. The House approved the resolution.
  • Resolution 104E – Investigation of Immigration Status of the Accused. Fourth, the Criminal Justice Section asked the House to adopt Resolution 104E, which urged courts to ensure that defense counsel inquires and investigates a juvenile defendant’s immigration status and informs the juvenile about any possible collateral consequences that may flow from different dispositions of the case. The resolution also sought to minimize adverse immigration consequences. Several revisions were made to the resolution and the House adopted it, as revised.
  • Resolution 104F – Victims of Human Trafficking. Additionally, the Criminal Justice Section urged the House to adopt Resolution 104F, as revised. Resolution 104F urged governments to enact laws and regulations and to develop policies that assure that once an individual has been identified as an adult or minor victim of human trafficking, that individual should not be subjected to arrest, prosecution or punishment for crimes related to their prostitution or other non-violent crimes that are a direct result of their status as an adult or minor victim of human trafficking. The House approved the resolution as revised in the House.
  • Resolution 104G – Affirmative Defenses for Victims of Human Trafficking. Consistent with President Bellows’ focus on Human Trafficking, the Criminal Justice Section also moved the House to adopt Resolution 104G, which urged governments to enact legislation allowing adult or minor human trafficking victims charged with prostitution related offenses or other non-violent offenses to assert an affirmative defense of being a human trafficking victim. The House revised the resolution and later adopted it.
  • Resolution 104H – Vacating Convictions for Victims of Human Trafficking. The Criminal Justice Section further moved the House to adopt Resolution 104H, which urged governments to aid victims of human trafficking by enacting and enforcing laws and policies that permit adult or minor victims of human trafficking to seek to vacate their criminal convictions for offenses related to their prostitution or other non-violent offenses that are a direct result of their trafficking victimization. The House approved the resolution as revised.
  • Resolution 104I – Training Relating to Human Trafficking. As the final human trafficking resolution, the Criminal Justice Section and the Commission on Domestic and Sexual Violence jointly urged the House to adopt Resolution 104I, which was revised. Resolution 104I urged bar associations to work with judges, lawyers, and other professionals with subject matter expertise in human trafficking, to develop and implement training programs for judges, prosecutors, defense counsel, law enforcement officers, immigration officials, civil attorneys, and other investigators that will enable them to identify adult and minor victims of human trafficking and enable them to direct victims and their families to agencies that offer social and legal services and benefits designed to assist adult and minor victims of human trafficking. The House approved Resolution 104I as revised.
  • Resolution 104J – Model Charge for Grand Juries. Finally, the Criminal Justice Section moved the House to adopt Resolution 104J, which urged the Judicial Conference of the United States to amend the Model Grand Jury Charge to clarify that the Grand Jury should be instructed to vote separately on each defendant. After hearing the arguments in support of the resolution, the House passed it without revision.

Additionally, the House considered several resolutions proposed by the Ethics 20/20 Commission. The resolutions largely sought amendments to the Model Rules of Professional Conduct, or other Model Rules, to address the realities of increasing lawyer mobility. The Ethics 20/20 Commission resolutions are discussed in turn.

First, the House approved revised Resolution 107A, which approved proposed amendments to Model Rule of Professional Conduct 5.5(b) and the ABA Model Rules of Professional Conduct (Unauthorized Practice of Law; Multijurisdictional Practice of Law) to allow foreign lawyers to serve as in-house counsel in the United States, as long as the foreign lawyers not advise on United States law except in consultation with a U.S.-licensed lawyer. There was a variety of interesting debate and discussion on this resolution. Ultimately, the House passed Resolution 107 as revised.

Second, the Ethics 20/20 Commission urged the House to adopt Resolution 107B. Resolution 107B proposed amendments to the ABA Model Rule for Registration of In-House Counsel so that the model rule would permit foreign lawyers to serve as in-house counsel in the United States with some restrictions. The House revised the resolution and adopted it.

Third, the House considered Resolution 107C, which proposed amendments to the ABA Model Rule on Pro Hac Vice Admission. The amendments were designed to provide judges with guidance about whether to grant limited and temporary practice authority to foreign lawyers to appear in courts in the United States. There was some interesting discussion prior to the House, and during the House debates, on the resolution. Ultimately, after an amendment, the House adopted the resolution.

Finally, the Ethics 20/20 Commission urged the House to adopt Resolution 107D, which proposed amendments to Model Rule of Professional Conduct 8.5. Rule 8.5 relates to choice of law applicable to conduct standards and lawyer discipline. The proposed amendments were designed to address common choice of law problems that are more frequently occurring in the context of conflicts of interest. The House approved the resolution.

The House considered a number of resolutions in addition to the nine resolutions proposed by the Criminal Justice Section and the four resolutions urged by the Commission on Ethics 20/20. Those are described below:

  • Resolution 10A – Court Funding Crisis. The New York State Bar Association moved the House to adopt Resolution 10A, which urged federal elected officials to adequately fund the federal courts and the Legal Services Corporation as they negotiate deficit reduction with the imminent threat of the implementation of sequestration if they fail. The House approved the resolution.
  • Resolution 101A – Patentable Subject Matter. The Section of Intellectual Property Law moved the House to adopt Resolution 101A, which was revised. Revised Resolution 101A provided that the ABA would support the principle that laws of nature, physical phenomena, and abstract ideas are not eligible for patenting as a process under 35 U.S.C. §101, even if they had been previously unknown or unrecognized. The House approved the resolution as revised.
  • Resolution 101B – Standards for Finding Direct Infringement. Additionally, the Section of Intellectual Property Law urged the House to adopt Resolution 101B, which supported clarifying the standards for finding direct infringement under 35 U.S.C. § 271(a) for a patent directed to a multiple-step process in the fact situation where separate entities collectively, but not individually, perform the required steps of the patented process. After a revision, the House approved the resolution.
  • Resolution 106 – Principles for Jury Trials. As its one resolution, the Commission on the American Jury Project asked the House to adopt Resolution 106, which proposed amendments to the 2005 ABA Principles for Juries and Jury Trials. The amendments were to Principles 1(C) through (F), 6(C), 10(C) and 11(A) of those Principles. After an interesting discussion in support of the resolution, the House approved the resolution.
  • Resolution 100 – Medicare Reimbursements. The ABA’s Standing Committee on Medical Professional Liability moved the House to adopt Resolution 100. Resolution 100 supports timely and efficient resolution of requests from a claimant or applicable plan for conditional payment reimbursement amounts where Medicare has a right to reimbursement from a recovery by way of settlement, judgment or award. The resolution also urged Congress and the Department of Health and Human Services to establish reasonable time limits and procedures for responding to such requests. The House approved the resolution.

Finally, the House of Delegates also considered a number of uniform acts proposed by the National Conference of Commissioners on Uniform State Laws. It is fairly typical for the House to consider proposed uniform laws at its meetings. The three uniform laws that the House considered were the Uniform Asset Freezing Orders Act, the Uniform Deployed Parents Custody and Visitation Act, and the Uniform Premarital and Marital Agreements Act. The House approved all three resolutions.

Conclusion

I hope this Article sufficiently highlighted many of the more interesting or important the agenda items considered by the House of Delegates at the midyear meeting in Dallas. The annual meeting this year will be in August 2013 in San Francisco. I appreciate all input that any members of the Denver Bar Association have regarding any of the issues that have been considered, or will be considered, by the ABA House of Delegates.

Troy Rackham defends lawyers, hospitals, nursing homes, long term care facilities and other health care organizations in a wide variety of cases and claims. He regularly advises legal professionals on ethics, malpractice and professional liability issues. Mr. Rackham co-wrote a treatise on Colorado Legal Malpractice litigation, which is updated annually. He has orally argued and prepared briefs in dozens of appellate cases, most of which involved claims against lawyers, hospitals, physicians, or health care systems. Mr. Rackham is a member of the American, Colorado, and Denver Bar Associations, and he is a member of the CBA Ethics Committee and the ABA House of Delegates.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Report from the ABA House of Delegates Meetings at the 2012 Midyear Meeting in New Orleans

I have the privilege of serving the Denver Bar Association as a delegate to the American Bar Association (“ABA”) House of Delegates.  The ABA House of Delegates met at the ABA’s midyear meeting held in New Orleans, Louisiana, on February 6, 2012.  This Article summarizes the House of Delegates events at the midyear meeting and the action taken by the House.

The Midyear Meeting was very well-attended.  It had the best reported attendance on record.  The ABA sponsored numerous programs on issues such as the Ethics 20/20 commission, the state court funding crisis, and efforts to improve access to justice.  There were many important issues addressed by the House of Delegates at the midyear meeting.  This Article summarizes a few of them.

Ethics 20/20 Commission’s White Papers and Proposals Relating to the Ethics of Litigation Financing, Non-Lawyer Ownership of Law Firms, Outsourcing, and the Use of Technology of Mobile Devices

Before the House of Delegates convened, the Ethics 20/20 Commission sent information around to the delegates regarding the work of the Commission and its proposals.  Specifically, the Commission informed the delegates of its plan to bifurcate its presentation of proposals to help facilitate the House of Delegates’ consideration of the Commission’s recommendations.  The decision to bifurcate the presentation of proposals foretells a concern that some of the Commission’s proposals will be controversial and will generate much discussion and debate.

Indeed, from the preview that the Commission has provided, some of the issues that the Commission will put before the House will generate much discussion.  The Commission has produced white papers that discuss many of the complex ethical issues that cannot effectively be addressed through changes to Model Rules.  Specifically, one of the Commission’s white papers discusses ethical issues involved with litigation financing, including issues regarding conflicts of interest, a lawyer’s duty of confidentiality, the attorney-client privilege, and rules regulating the exercise of the lawyer’s independent judgment.  The Commission’ white paper can be found by clicking here.

The Commission also is working on proposals relating to alternative business structures for law firms, outsourcing of legal services and confidentiality-related ethics issues arising from lawyers’ use of technology. Additionally, the Commission also is working on a model rule relating to lawyers’ obligations to retain client files.  An issues paper regarding alternative business structures for law firms – including non-lawyer ownership of law firms – has been distributed by the Commission.  It can be found by clicking here.

During the House of Delegates meeting, Former ABA President Carolyn B. Lamm addressed the House about the Commission’s progress.  President Lamm explained that numerous various roundtable sessions and meetings have been held around the country.  She explained that formal recommendations will be presented at the annual meeting in 2012 and at the midyear meeting in 2013.  President Lamm explained that one of the Commission’s more controversial issues is whether non-lawyers should be allowed under legal ethics rules to have a limited ownership interest in law firms in the United States.  This issue has been discussed extensively in Colorado previously.

President Lamm explained that the Commission is considering other issues relating to the need to balance the convenience and efficiencies inherent in a lawyer’s use of new technologies, while also preserving the lawyer-client relationship, confidentiality, competence and the values of the profession.  President Lamm explained that the Commission plans in presenting proposals on each of these issues for consideration by the House of Delegates.  All interested members of the Bar should get in touch with me or other Colorado delegates to discuss any concerns about any of the issues that are being considered by the Ethics 20/20 Commission, or the proposals that are likely coming from the Commission.

Summary of the House of Delegates

After the House of Delegates convened on February 6, 2012, the Delegates were greeted by Mitchell Landrieu, the Mayor of New Orleans, who also is a lawyer.  Mayor Landrieu talked about the challenges that the city has been through in recent years, with Hurricanes Katrina and Rita, and the BP oil spill.  Mayor Landrieu quipped that the city is “waiting for locusts now.”  Mayor Landrieu’s speech was interesting and insightful, explaining that New Orleans is truly resilient and has become the “a laboratory for innovation and change,” because of the disasters it has suffered.  Mayor Landrieu’s speech was an excellent way to kick-off the work of the House.

After the Mayor’s speech and some other introductory actions, the House got to work debating and voting on resolutions before the House.  The House adopted a number of important resolutions, including:

  • Resolution 101A, which adopted the black letter ABA Criminal Justice Standards on Law Enforcement Access to Third Party which provide a framework through which legislatures, courts acting in their supervisory capacity and administrative agencies can balance the needs of law enforcement and the interests of privacy, freedom of expression and social participation.
  • Resolution 101B, which urged governments at various levels to require laboratories producing reports for use in criminal trials to adopt pretrial discovery procedures requiring comprehensive and comprehensible laboratory and forensic science reports, and listed relevant factors to be included in such reports.
  • Resolution 101C, which urged trial judges who have decided to admit expert testimony to consider a number of factors in determining the manner in which that evidence should be presented to the jury, and also provided guidance about how to instruct the jury in its evaluation of expert scientific testimony in criminal and delinquency proceedings.
  • Resolution 101F, which supported legislation, policies and practices that allow equal and uniform access to therapeutic courts and problem-solving sentencing alternatives, such as drug treatment and anger management counseling, regardless of the custody or detention status of the individual.
  • Resolution 113, which called for adoption as ABA policy uniform standards for language access in courts.  The policy provides clear guidance to courts in designing, implementing, and enforcing a comprehensive system of language access services that is suited to the need in the communities they serve.
  • Resolution 102B, which approved the Uniform Electronic Legal Material Act promulgated by the National Conference of Commissioners on Uniform State Laws in 2011, as an appropriate Act for those states desiring to adopt the specific substantive law suggested therein.  The Uniform Act provides rules for the authentication and preservation of electronic legal material.
  • Resolution 108, which urged state and territorial bar admission authorities to adopt rules and procedures to accommodate the unique needs of military spouse attorneys who move frequently in support of the nation’s defenses.
  • Resolution 111, which urged entities that administer a law school admission test to provide appropriate accommodations for a test taker with a disability to best ensure the exam reflects what the test is designed to measure and not the test taker’s disability.
  • Resolution 302, which supported the principle that “private” lawyers representing governmental entities are entitled to claim the same qualified immunity provided “government” lawyers when they are acting “under color of state law.”  This issue is particularly important given that there is a pending case before the United States Supreme Court considering this question.  See Filarsky v. Delia, U.S. No. 10-1018, argued 1/17/2012.

A summary of the resolutions adopted by the House can be found by clicking here.  Additionally, I can provide a copy of the resolutions to any interested reader. Contact me if interested.

Statement from President Robinson

In addition to this important work, the House of Delegates heard from Bill Robinson, President of the ABA.  President Robinson explained that the most pressing issue facing the legal system today is under-funding of the courts, which is at a crisis level.  President Robinson urged all ABA members to consider the under-funding crisis to be a threat to our liberty and rule of law.  President Robinson explained the ABA’s efforts to combat this crisis, including its extensive education efforts and its efforts to increase public awareness about the crisis.  Additionally, the ABA has made the crisis the core of the law day events, which will focus on the theme: “No Courts, No Justice, No Freedom.”

Nomination of James Silkenat as President-Elect

Additionally, the nominating committee announced that James Silkenat of New York was nominated to be President-Elect Designee of the ABA.  The House of Delegates will vote on his nomination at the Annual Meeting in Chicago this August.  If elected, Mr. Silkenat will serve a one-year term as President beginning in August, 2013.  All members of the Bar are urged to give any input on Mr. Silkenat to me or any of the other Colorado delegates.

Other Matters

Finally, the House of Delegates also considered other matters.  Those other matters included a report from the ABA’s Executive Director, Jack Rives, and a report from the ABA’s treasurer.  The House also heard from Chief Judge Washington, who is the President of the Conference of Chief Justices.  Chief Judge Washington spoke about language access to the courts.  He also discussed the core focuses of the Conference, which are judicial independence and civics education.

Conclusion

I hope this Article sufficiently highlighted many of the more interesting or important the agenda items considered by the House of Delegates at the midyear meeting in New Orleans.  I appreciate all input that any members of the Denver Bar Association have regarding any of the issues that have been considered, or will be considered, by the ABA House of Delegates.

The American Bar Association is offering a free trial membership in the ABA and in a section of the ABA. Sign up here.

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