This Month's News
New ABA policies span range of issues
Federal preemption, forensic science, same-sex marriage and legal services were just a few of the issues tackled by the ABA House of Delegates as the delegates approved more than 30 new policies during its Aug. 9-10 meeting. Read more...
Stephen N. Zack assumes ABA presidency
Miami lawyer Stephen N. Zack outlined his initiatives last month as he began a one-year term as ABA president at the association's Annual Meeting in San Francisco. Read more...
ABA submits brief in Red Flags appeal
The ABA maintained in a brief submitted to the D.C. Circuit Court of Appeals Aug. 20 that the Fair and Accurate Credit Transaction Act (FACTA) does not grant the Federal Trade Commission (FTC) the statutory authority needed to regulate lawyers and require them to comply with Red Flags provisions in the law. Read more...
ABA urges Congress to restore IOLTA coverage under TAG
The ABA is urging Congress to amend the new financial regulatory reform law (P.L. 111-203) or pass separate legislation to correct an oversight that excludes Interest on Lawyers' Trust Accounts (IOLTA) from a special insurance program created by the Federal Deposit Insurance Corporation (FDIC) in 2008. Read more...
Legislation would support medical-legal partnerships
Bipartisan legislation introduced in the Senate and House July 29 would authorize $10 million to establish a demonstration program for medical-legal partnerships (MLPs), efforts supported by the ABA and the American Medical Association (AMA) to help provide legal assistance to vulnerable populations facing health crises. Read more...
WASHINGTON NEWS BRIEFS
GULF COAST CLAIMS PROTOCOLS: The ABA Governmental Affairs Office (GAO) coordinated an effort this summer by key volunteer leaders within the association to submit technical comments on and edits to several Gulf Coast Claims Facility protocols prepared by BP Claims Administrator Kenneth R. Feinberg. Read more...
JUVENILE JUSTICE: The ABA is urging the federal Coordinating Council on Juvenile Justice and Delinquency Prevention to address several key issues as the council focuses on four priority areas it has identified for close examination in connection with its assessment of federal policy and practice affecting children, youth and families. Read more...
New ABA policies span range of issuesFederal preemption, forensic science, same-sex marriage and legal services were just a few of the issues tackled by the ABA House of Delegates as the delegates approved more than 30 new policies during its Aug. 9-10 meeting. In addition to the House of Delegates action, the ABA Annual Meeting in San Francisco featured more than 1,485 events and continuing legal education programs. Highlights included the presentation of the ABA Medal to Supreme Court Justice Ruth Bader Ginsburg and the passing of the gavel from outgoing President Carolyn B. Lamm to Stephen N. Zack, the first Cuban-American to serve as president of the association (see article below). The following paragraphs include a summary of major legislative policies approved by the delegates.
Foster Care/Adoption. Urges effective implementation of the older youth provisions of the Fostering Connections to Success and Increasing Adoptions Act of 2008, in particular to extend foster care, independent and transitional living services, adoption assistance and guardianship assistance to all youth and young adults in foster care through age 21.
Child Abuse Cases. Adopts Judicial Excellence in Child Abuse and Neglect Proceedings: Principles and Standards for Court Organizations, Judicial Selection and Assignment, Judicial Administration and Judicial Education, dated August 2010, to improve, at the state and local levels, the quality of judicial practice and court processes related to civil child abuse and neglect cases.
Civil Rights/Constitutional Law
Same-sex Marriage. Urges state, territorial and tribal governments to eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry. Courts/Judiciary
Judicial Training. Encourages education and training for judges in the United States and abroad regarding financial market products and practices, and urges that judges be provided with accurate, timely, balanced and reliable educational resources.
Judicial Ethics. Amends the Application Section of the 2007 ABA Model Code of Judicial Conduct to address application of the code to part-time judges to ensure consistency in judicial ethics standards nationwide.
Justice Department. Urges the Justice Department to continue its commitment to investigate and report on investigations of allegations of professional misconduct by the department's lawyers in a way that is consistent with privacy interests and law enforcement confidentiality concerns.
Prosecutorial Conduct. Urges trial and appellate courts, when reviewing the conduct of prosecutors in criminal cases, to differentiate between "error" and "prosecutorial misconduct."
Immigration. Urges federal, state, territorial, tribal and local governments to provide funding to states and federal public defender offices and legal aid programs specifically to provide immigration advice about the immigration consequences of criminal proceedings to indigent non-U.S. citizen defendants and about any available relief from such consequences.
Forensics. Urges federal, state, local and territorial governments to provide sufficient funding and resources to facilitate basic and applied scientific research to accomplish certain goals for improving and further developing forensic science disciplines.
Forensic Laboratories. Urges the federal government to provide funding and resources sufficient to facilitate the examination of existing standards, accreditation and certification for government and private laboratories, examiners/analysts in government and private laboratories, and identified forensic science service providers who offer examination conclusions and/or interpretations of forensic laboratory results.
Forensics/Homeland Security. Urges the federal government to provide the funds, resources and other support necessary to effectively integrate the forensic science community into the nation's system of homeland security.
Forensic Accreditation. Urges federal, state and territorial governments to provide funding and enact legislation necessary to support requiring that all offices charged with conducting medico-legal death investigations meet mandatory accreditation, certification or professional practice standards within a reasonable time frame.
Databases. Urges Congress to enact legislation to authorize and appropriate funds necessary to achieve nationwide interoperability of the Automated Fingerprint Identification System, to adopt methods for improving the effectiveness of the National Integrated Ballistic Information Network, and to facilitate the development and implementation of a system interoperability strategy for current and future forensic database systems.
Evidence Testing. Urges federal, state, local and territorial governments, legislative bodies and courts to provide the funds and other resources necessary to assure that in criminal cases an accused is able to obtain the testing or re-testing of evidence when feasible by qualified experts, and is provided expert testimonial or other assistance when necessary to assure a fair trial or sentencing proceedings.
Money Laundering. Supports U.S. government efforts to combat money laundering and terrorist financing, and adopts the Voluntary Good Practices Guidance for Lawyers to Detect and Combat Money Laundering and Terrorist Financing.
Advocacy. Supports the reauthorization, funding and authority of the Protection and Advocacy System and related programs of legally based advocacy services protecting the rights of persons with disabilities, and opposes legislation that would place limits on class actions on behalf of persons with disabilities beyond what is required under the Federal Rules of Civil Procedure.
Civic Education . Encourages all lawyers to consider it part of their fundamental responsibility to ensure that all students experience high-quality civic learning, including the study of law, government and history.
Older Americans Act. Urges Congress and the administration to reauthorize and implement the Older Americans Act of 1965, as amended, to give increased priority to the delivery of legal services and elder justice.
Voter Registration. Supports state and federal initiatives to modernize and improve voter registration practices, databases and networks; urges an independent technical and security assessment of statewide voter registration databases; and supports efforts to achieve ongoing improvements to such databases that include certain elements. Federal Government
Preemption. Urges the president to improve agency compliance with Executive Order 13132, issued in 1999 on federalism, by requiring inclusion in the rulemaking process of an entity independent of the agency regulatory office with sufficient autonomy, authority and resources to conduct an effective review before the adoption of a federal rule that has the potential to displace, supplement or otherwise affect state tort law.
Microstamping. Urges federal, state and territorial governments to enact laws requiring that all newly manufactured semi-automatic pistols be fitted with microstamping technology that would ensure that an alphanumeric and/or geometric code would be stamped on the cartridge casing when a firearm is fired to enable law enforcement to identify the serial number of the pistol and therefore the first known purchaser of a weapon used in a crime.
Medicare Benefits. Urges Congress to amend the Medicare, Medicaid and SCHIP Extension Act of 2007 to create a safe harbor provision protecting responsible reporting entities from civil penalties when they rely on an appropriate process to obtain reportable information or rely upon information verified by claimants regarding entitlement to or receipt of Medicare benefits.
Startup Visa. Urges Congress to enact laws that provide for an immigration classification whereby foreign nationals intending to form businesses are provided a mechanism (such as Startup Visa) under which they can enter or remain in the United States to obtain permanent resident status in order to build such businesses.
Copyright. Supports the principle that, under the Copyright Clause of the U.S. Constitution, Congress has the power, as a way to improve protection available abroad to holders of U.S. copyrights, to implement U.S. obligations under international copyright treaties by restoring copyright protections to certain works of foreign origin that have gone into the public domain.
Nuclear Weapons. Urges the United States to ratify the Comprehensive Nuclear Test Ban Treaty, an international agreement designed to create a permanent, global, legally binding and all-encompassing prohibition on any nuclear explosions.
Haiti. Urges the federal government to intensify its efforts to provide adequate food, water, shelter and physical security to women and children in Haiti who were displaced by the January 2010 earthquake, and to fund and support regional, sub-regional and international programs that prioritize the protection of these vulnerable groups in conformity with international human rights principles.
Client Trust Accounts. Adopts the ABA Model Rules for Client Trust Account Records, dated August 2010, to replace the 1993 ABA Model Rule on Financial Recordkeeping to clarify recordkeeping requirements for lawyers following changes in banking laws, increases in form and volume of electronic transactions from client trust accounts, changes in law office management, and advances in methods of record maintenance.
Access. Adopts the ABA Model Access Act, dated August 2010, which is a model statute for implementing jurisdictions to establish and administer a civil right to counsel consistent with ABA policy adopted in August 2006.
Right to Counsel. Adopts the ABA Basic Principles of a Right to Counsel in Civil Legal Proceedings, dated August 2010, which represents an effort to state, in a clear and accessible fashion, the fundamental requirement for effectively providing representation in certain high-priority civil proceedings to persons unable to afford an attorney.
Juveniles. Urges state, local, territorial and tribal governments to provide legal counsel as a matter of right and at public expense to children and/or youth at all stages of proceedings for juvenile status offenses, which encompass conduct that is unlawful solely because of the youth's age and include actions such as truancy, alcohol possession and running away from home.
"Trying High-Profile Cases in a 24/7 New Media World" was the topic of an Aug. 8 panel discussion sponsored by the ABA Judicial Division. Those participating were (from left): Judge Gene E. K. Pratter, of the U.S. District Court for the Eastern District of Pennsylvania; Judge Reggie B. Walton, of the U.S. District Court for the District of Columbia; moderator Jonathan Turley, of George Washington University Law School; Judge Barbara M. G. Lynn, of the U.S. District Court for the Northern District of Texas; David Boies, chairman of the law firm of Boies, Schiller & Flexner LLP; and Ron Sylvester, a reporter for the Wichita Eagle.
Stephen N. Zack assumes ABA presidency
Miami lawyer Stephen N. Zack outlined his initiatives last month as he began a one-year term as ABA president at the association's Annual Meeting in San Francisco.
Zack, who accepted the presidential gavel Aug. 9 from outgoing President Carolyn B Lamm, already has taken action on his four areas of concern.
- Preservation of the Justice System. Zack appointed a 20-member task force chaired by Ted Olson and David Boies to highlight the impact the current economic crisis is having on access to justice.
- Civics Education. A new American Bar Academy established by Zack and chaired by Marna Tucker and Paulette Brown will promote the teaching of civics to high school students.
- Hispanic Legal Rights. Zack, who is the first Cuban-American ABA president, has appointed Cesar Alvarez to chair a new Commission on Hispanic Legal Rights and Responsibilities to identify the legal needs of the largest and fastest growing minority in the United States.
- Disaster Preparedness. The ABA president, through the creation of a Special Committee on disaster Response and Preparedness chaired by David Bienvenu, is encouraging courts and bar associations to prepare for natural and man-made disasters. A first step is adoption by states of the ABA Model Court Rule on Provision of Legal Services Following Determination of Natural Disaster (Katrina Rule), which allows lawyers to do pro bono work in other states when disaster strikes.
Zack, who has been an ABA member for more than 30 years, is a partner in the national law firm of Boies, Schiller & Flexner LLP. He has held numerous leadership positions within the ABA, including chair of the ABA House of Delegates, member of the Board of Governors, chair of the Strategic Planning Action Committee, member of the Center for Racial and Ethnic Diversity, and secretary of the American Bar Endowment. He is a life fellow of the American Bar Foundation. He also was the youngest president of the Florida Bar, is on Hispanic Business Magazine's 2010 list of the 100 Top Influential Hispanics, and is listed in the 2011 edition of the Best Lawyers in America in the practice area of commercial litigation.
Zack received his undergraduate and law degrees from the University of Florida.
ABA submits brief in Red Flags appeal
The ABA maintained in a brief submitted to the D.C. Circuit Court of Appeals Aug. 20 that the Fair and Accurate Credit Transaction Act (FACTA) does not grant the Federal Trade Commission (FTC) the statutory authority needed to regulate lawyers and require them to comply with Red Flags provisions in the law.
The Red Flags Rule requires "financial institutions" and "creditors" to implement programs to detect, identify and respond to activities that signal possible identity theft. The FTC included lawyers in the definition of "creditors" that are subject to the rule, which is now scheduled to go into effect Jan. 1, 2011.
The ABA maintained in a lawsuit brought last August 2009 that the commission's contention that the common practice of monthly billing – or merely allowing a client to defer payment of a legal bill – creates a credit relationship is "unsupportable."
The FTC is appealing a decision in the ABA's favor issued Oct. 30, 2009, by Judge Reggie Walton of the U.S. District Court for the District of Columbia that ruled that the FTC has exceeded its authority by applying the rule to practicing lawyers. The ABA filed its recent Aug. 20 brief in response to the FTC's appeal.
"The plain language of FACTA and its legislative purpose demonstrate that Congress did not grant the Commission the authority it wishes to exercise in this case," the ABA brief stated, adding that even if FACTA were ambiguous, the FTC's interpretation of it is unreasonable.
In its appeal, the FTC claimed for the first time that the ABA cannot win if there is a "plainly legitimate sweep" of circumstances in which the Red Flags Rule may apply to lawyers. The ABA argues in its brief that this argument is meritless and the "legitimate sweep" standard has never been applied outside the context of facial challenges brought against statutes on constitutional grounds.
Amicus briefs were submitted Sept. 7, and bar associations from 47 states, the District of Columbia, and seven metropolitan areas signed onto a brief written by the New York State Bar Association. The FTC reply brief is due Sept. 21, and oral arguments are expected later this year.
ABA urges Congress to restore IOLTA coverage under TAG
The ABA is urging Congress to amend the new financial regulatory reform law (P.L. 111-203) or pass separate legislation to correct an oversight that excludes Interest on Lawyers' Trust Accounts (IOLTA) from a special insurance program created by the Federal Deposit Insurance Corporation (FDIC) in 2008.
The Transaction Account Guarantee (TAG) program fully insures non-interest-bearing deposit transaction accounts for the entire amount. Normally, FDIC insures each individual's funds held at a given financial institution up to a maximum of $250,000. As a result of advocacy by the ABA, state and local bar association and other legal groups, IOLTA programs have been covered under the TAG program since its inception.
The TAG program was scheduled to expire Dec. 31, 2010, but Congress mandated the program by statute earlier this year by including a last-minute addition to the financial regulation reform law. The new law extends TAG for two years but does not include IOLTA in the definition of covered accounts. As a result, unless the law is amended, IOLTA will not be covered after Dec. 31 when the new provisions go into effect.
IOLTA accounts contain client funds held by a lawyer to cover routine court expenses and legal fees or as a temporary depository for large sums of money resulting from transactions such as real estate closings and settlements. Lawyers place client funds in these special accounts because the funds cannot earn net interest for the client. The interest earned on them is channeled to programs providing civil legal aid to the poor and is one of the largest source of funding for such programs.
Today, all 50 states, the District of Columbia and the Virgin Islands have IOLTA programs; 42 jurisdictions require lawyers to deposit into IOLTA those client funds that cannot earn net interest for the client.
While there is a great need for IOLTA-generated income for civil legal aid programs, a lawyer has a fiduciary duty to maintain the security of client funds.
If the oversight in the law is not corrected, it is possible that lawyers holding significant client funds will consider whether to continue to use their IOLTA accounts or to place their clients' funds in fully insured non-interest-bearing deposit transaction accounts. Moving the accounts, the ABA maintains, would deprive civil legal aid programs of a major source of funding.
Legislation would support medical-legal partnerships
Bipartisan legislation introduced in the Senate and House July 29 would authorize $10 million to establish a demonstration program for medical-legal partnerships (MLPs), efforts supported by the ABA and the American Medical Association (AMA) to help provide legal assistance to vulnerable populations facing health crises.
"Medical-legal partnerships bring legal aid services into medical settings, such as hospitals and community health centers, to provide patients with legal help to address conditions that lead to poor health, lengthy hospital stays and repeated emergency visits," according to Sen. Tom Harkin (D-Iowa), who introduced the Senate bill with Sens. Evan Bayh (D-Ind.) and Christopher Bond (R-Mo.). Reps. Daniel Maffei (D-N.Y.) and Christopher Murphy (D-Conn.) introduced companion legislation, H.R. 5961, in the House.
Dr. Barry Zuckerman of Boston Medical Center conceived the MLP concept in 1993 when he realized that medical care alone could not keep his low-income patients healthy. Since then, the number of MLPs has grown to more than 85 partnerships at more than 200 hospitals and health care clinics in 38 states.
Through the programs, lawyers address a variety of issues, including ensuring access to food, preventing utility shutoff during cold winter months, fighting illegal evictions and removing mold from the homes of asthmatic children.
Harkin emphasized that the legislation builds upon the great work that medical–legal partnerships are doing every day all across the United States. The demonstration program established by the legislation would help create, strengthen and evaluate MLPs by supporting 60 MLP sites in community health centers, Department of Veterans Affairs hospitals, and other health care settings, he said.
The ABA adopted policy in 2007 urging lawyers, law firms, legal services agencies, law schools and bar associations to develop MLPs with hospitals, community- based health care providers and social service organizations. The next year the association established its MLP Pro Bono Support Project, a joint effort of the ABA's Standing Committee on Pro Bono and Public Service, Health Law Section, AIDS Coordinating Committee, and Center on Children and the Law.
In March, the ABA Governmental Affairs Office participated in an MLP lobbying day and congressional staff briefing as part of the fifth annual MLP National Summit. While the House included an MLP provision in its version of comprehensive health care reform legislation, the provision was not included in the final version of the legislation enacted earlier this year.
The AMA joined the ABA in supporting MLPs when the AMA Board of Trustees adopted policy in June encouraging physicians to develop MLPs to help identify and resolve diverse legal issues that affect patients' well-being.
WASHINGTON NEWS BRIEFS
GULF COAST CLAIMS PROTOCOLS: The ABA Governmental Affairs Office (GAO) coordinated an effort this summer by key volunteer leaders within the association to submit technical comments on and edits to several Gulf Coast Claims Facility protocols prepared by BP Claims Administrator Kenneth R. Feinberg. President Obama appointed Feinberg in June to oversee the $20 billion escrow account for damage claims from the massive BP oil spill that occurred in April in the Gulf of Mexico. The two draft protocols set forth the procedures and standards governing both emergency distributions and final lump-sum settlement payments to individuals and businesses harmed by the spill. Following a meeting with GAO staff, various expert attorney practitioners from several ABA entities reviewed the draft protocols and provided their own individual comments and suggested edits to Feinberg, with GAO coordinating the overall effort. ABA entities involved in the process included the Sections of Administrative Law and Regulatory Practice, Dispute Resolution, Litigation, and Tort Trial and Insurance Practice, as well as the ABA Special Committee on Disaster Response and Preparedness. Due to the lack of specific ABA policy on the issues raised by the protocols, however, the comments submitted to Feinberg reflected only the view of the individual ABA volunteer leaders participating in the effort, not the association or any of its sections or other entities. In addition to submitting two sets of comments to Feinberg, on July 16 and Aug. 13, the ABA has actively participated with Gulf States bar leaders in discussions about providing effective pro bono assistance to those individual and small businesses injured by the oil discharge. The Gulf Coast Claims Facility officially opened Aug. 23 with a protocol for emergency advance payments in place. The protocol for final payments is expected to be finalized after Labor Day.
JUVENILE JUSTICE: The ABA is urging the federal Coordinating Council on Juvenile Justice and Delinquency Prevention to address several key issues as the council focuses on four priority areas it has identified for close examination in connection with its assessment of federal policy and practice affecting children, youth and families. The four priority areas, announced in July 8 by the council, are Education and At-risk Youth, Juvenile Reentry and Transitions into Adulthood, Racial/ethnic Disparities in the Juvenile Justice and Related Systems, and Tribal Youth and Juvenile Justice. In comments submitted Aug. 5, the ABA stated that the federal government must address collateral consequences of juvenile adjudications by increasing opportunities for youth involved in the juvenile or criminal justice system as a way to prevent continuing discrimination that affects a juvenile's legal rights, opportunities and benefits. The comments also recommended that Congress ensure funding for the John R. Justice Prosecutors and Defenders Incentive Act of 2008, which provides loan forgiveness to encourage qualified lawyers to enter and continue employment as prosecutors and public defenders to help ensure adequate representation throughout the juvenile justice system. The ABA also urged reauthorization of the Juvenile Justice and Delinquency Prevention Act, support for federal programs to help eliminate racial disparities in the criminal justice and child welfare systems, improved reentry programs for juveniles, and programs ensuring school stability and continuity and improving educational outcomes for children in and transitioning out of foster care. Teams designated by the council for the four priority areas will use the comments from the ABA and others to develop recommendations that will be part of the council's 2010 annual report to Congress.