Denver Bar Association
November 2012
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Report from Chicago: Inside the ABA Annual Meeting

by Troy R. Rackham

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The House of Delegates, which is the policy-making body of the American Bar Association, met on Aug. 6 and 7 in Chicago. I represent the Denver Bar Association as a delegate. The House of Delegates enacted a number of policies affecting the practice of law generally and some policies that may have specific impact here in Colorado.

Summary of Resolutions Approved by the House of Delegates

The House of Delegates considered a large number of resolutions addressing a variety of topics affecting the legal profession, including resolutions relating to access to justice, administrative law, animal rights, armed forces law, civil rights, criminal law, criminal procedure, immigration, international law, and ethics and professional responsibility. This article will provide a summary of the resolutions passed, in particular including the resolutions relating to ethics and professional responsibility. To view a full review of the meeting, please visit bit.ly/ R1rwKb.

Ethics and Professional Responsibility: Changes to the Model Rules

The 2012 Annual Meeting was the first meeting of the House of Delegates to consider the first series of resolutions proposed by the Ethics 20/20 Commission. Those resolutions proposed changes to the Model Rules of Professional Conduct relating to lawyers’ use of technology in marketing, modernization of the confidentiality and competency rules, and rules relating to outsourcing of legal work. In my estimation, the resolutions stemming from the Ethics 20/20 Commission were the most important for the bar generally because they are the most likely to have a broader impact beyond a particular section or interest group.

Before getting to those important resolutions, however, the house detoured to consideration of Resolution 10A, which was proposed by the Illinois State Bar Association and sought to reaffirm that the sharing of legal fees with nonlawyers, and the ownership or control of the practice of law by non-lawyers, are concepts that are inconsistent with the core values of the legal profession and the law governing lawyers.

Resolution 10A was largely an attempt to preempt what many delegates feared would be coming: a resolution or resolutions that would propose amendments to the model rules allowing for non-lawyer ownership of law firms. Resolution 10A was vigorously debated, but turned out to be much ado about nothing, because the Ethics 20/20 Commission has not proposed resolutions allowing for non-lawyer ownership of law firms. Consideration of the resolution was postponed indefinitely.

After this detour, the house got to work on seriously considering six resolutions proposed by the Ethics 20/20 Commission and various sections, all of which related to ethics and professional responsibility issues. Those resolutions were:

  • Resolution 105A sought to amend the black letter and comments to model rules 1.0, 1.6, and 4.4 and the comments to model rules 1.1 and 1.4 for the purpose of providing guidance regarding lawyers’ use of technology and confidentiality. The resolution was amended in a minor way and ultimately was approved as amended.
  • Resolution 105B sought to amend the black letter and comments to model rules 1.18 and 7.3 and the comments to model rules 7.1, 7.2, and 5.5 for the purpose of providing guidance regarding lawyers’ use of technology for marketing, solicitation, and client development. After an interesting and lively debate, the House of Delegates approved the resolution.
  • Resolution 105C sought to amend the comments to model rules 1.1, 5.3, and 5.5 in order to address considerations involved in outsourcing, or specifically, the ethical implications of retaining lawyers and non-lawyers outside the firm to work on client matters. The discussion on this resolution was sophisticated and very interesting. The house ultimately approved the resolution.
  • Resolution 105D proposed the adoption of the Model Rule on Practice Pending Admission, and also sought to amend the black letter and comment to model rule 5.5. The aim of the proposed model rule and amendments was to enable a lawyer to practice in a new jurisdiction while he or she actively pursues admission through one of the procedures the jurisdiction authorizes. Resolution 105D was heavily supported by sections of the ABA. It ultimately passed without substantial opposition.
  • Resolution 105E proposed amendments to the ABA Model Rule for Admission by Motion to allow lawyers to qualify for admission by motion at an earlier point in their careers than the current rule allows. The house overwhelmingly approved this resolution.
  • Finally, Resolution 105F sought to amend the black letter and comments to model rule 1.6 and the comments to model rule 1.17 for the purpose of providing guidance regarding disclosure of information relating to the representation of a client for the purpose of detecting conflicts of interest when lawyers move from one firm to another, firms merge, or there is a sale of a law practice. Resolution 105F was amended to clarify the circumstances of when such a disclosure may be warranted and to impose some limitations on such a discussion. Some proponents sought another amendment, which would have removed one of the critical purposes of the resolution. This amendment was defeated. There was a very thorough and thoughtful debate on the resolution, but the house ultimately approved the resolution as revised.

The changes to the model rules, and how they may impact Colorado lawyers, have been discussed in a CLE program here in Denver. To access the replay, please visit bit.ly/Q81O3G. Further, if you are personally interested in discussing the changes, I invite you contact me.

Other Resolutions Adopted by the House

The House of Delegates considered a variety of other resolutions, in addition to those from the Ethics 20/20 Commission:

  • Resolution 10B urged federal, state, territorial, tribal, and local governments to support efforts to address the decline in the number of lawyers practicing in rural areas and to address access to justice issues for residents in rural America.
  • Resolution 109B was revised and approved. It urged federal agencies to pursue regulatory cooperation with relevant foreign authorities where appropriate and consistent with their legal authority, statutory mandates, and regulatory missions.
  • Resolution 100, called by some as the “Pit Bull or Poodle” Resolution, was submitted on behalf of the Tort Trial and Insurance Practice Section. It urged legislative bodies and governmental agencies to adopt comprehensive, breed-neutral dangerous dog laws based on behavior and to repeal any breed-discriminatory or breed-specific provisions. The resolution passed.
  • Resolution 116 amended the ABA’s 2008 policy regarding racial and ethnic profiling so that the policy now includes religious profiling and characteristics indicative of religious affiliation.
  • Resolution 115 urged legislatures to enact legislation to protect individuals and organizations who choose to speak on matters of public concern from meritless litigation designed to suppress such speech, commonly known as SLAPPs (Strategic Lawsuits Against Public Participation).
  • Resolution 107A, which was revised and approved, urged governments to review child sexual abuse criminal statutes of limitations to determine whether extending the statute of limitations is warranted.
  • Resolution 107C urged defender organizations and criminal defense lawyers to address clients’ interrelated criminal, civil, and non-legal problems and urging funding for these purposes. Although the resolution had some opposition, the resolution passed.
  • Resolution 107D urged Congress to amend 28 U.S.C. § 2254(d) to require a federal district court to review de novo, based on the record made in federal court, claims of ineffective assistance of counsel by petitioners facing a death sentence. The house revised the resolution slightly and ultimately adopted it.
  • Resolution 102 addressed an immigration law issue. Specifically, the resolution adopted the ABA Civil Immigration Detention Standards, which govern the treatment of persons in the U.S. immigration detention system.
  • Resolution 113, which was submitted on behalf of the Section of International Law, urged the Department of Homeland Security to create a Haitian Family Reunification Parole Program and immediately begin paroling already-approved Haitian beneficiaries of family-based visa petitions.
  • Resolution 106B, which was submitted on behalf of the Commission on Law and Aging, adopted the Third National Guardianship Summit Standards and Recommendations and urged courts and policy-making bodies to implement them.
  • Resolution 112A urged lawyers, judges, child welfare agency administrators, legislators, educators, and educator regulatory bodies to support the enrollment in and successful completion of postsecondary education by youth in foster care or those who have been in foster care.
  • Resolution 112B urged attorneys, judges, state and local bar associations, and law school clinical programs to help identify and respond effectively to Fetal Alcohol Spectrum Disorders in children and adults through training to enhanced awareness of FASD.

Finally, the House of Delegates had a vigorous and informative debate on Resolution 101, which was proposed by the Section of Litigation. Resolution 101 proposed adoption of model Guidelines for Retention of Experts by Lawyers. The proponents argued that it was important to have standardization of the terms and nature of expert retention. The opponents argued that the guidelines were unnecessary and contained provisions that would have been problematic, such as the provision that an expert can attain “competence.” Ultimately, the house voted against the adoption of the proposed guidelines.

Statement by Outgoing ABA President Bill Robinson

The ABA’s annual meeting always is an interesting event for a variety of reasons, but in particular, because of the change in leadership. William (Bill) T. Robinson turned his gavel over to the new ABA President Laurel Bellows. Before he did so, however, Robinson spoke to the house about the ABA’s work during his tenure as president and the important work that remains. Robinson noted that the ABA strengthened its diversity efforts this year within the association and in the legal profession. He continued his repeated calls for expanding court funding and national advocacy for court funding. He emphasized that still more needs to be done regarding this courtfunding crisis, as many states continue to decrease funding for their state courts and have had to close or limit access to courts and court-related services. Indeed, the court-funding crisis is becoming severe—with more and more state courts closing or limiting services and more and more participants in the legal process becoming frustrated by the inability of the system to resolve their disputes in a timely and appropriate way.

Award of the ABA Medal

Undoubtedly, the highlight of the ABA Annual Meeting for me, and for many of the delegates, was the presentation of the ABA Medal to Morris S. Dees, Jr.

Dees created the Southern Poverty Law Center, obtained reversal of the death sentences in the Triboro Three case, and has used civil lawsuits to secure judgments against racists and hate groups. The ABA honored Dees for his courage, leadership, and service.

In Dees’ speech to the House he described his life as a trial lawyer and illustrated the highly personal lessons he has experienced over the course of his career. His speech was thoughtful and inspiring.

New Leadership

In addition to the passing of the gavel to Bellows, who is from Chicago, other new leaders began their terms. James R. Silkenat of New York will serve as the ABA’s president-elect and Robert M. Carlson of Montana will serve as the chair of the House of Delegates.

Looking Forward

The next meeting of the House of Delegates will be at the ABA Midyear Meeting in Dallas in February. I welcome any feedback from any members of the DBA regarding any of the issues that have been considered, or will be considered, by the ABA House of Delegates. D

Troy R. Rackham is the DBA’s delegate to the ABA House of Delegates. He is of counsel at Fennemore Craig. Members interested in discussing issues of the ABA and the House of Delegates may contact him at trackham@fclaw.com.

Troy Rackham

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