New policies on an array of topics – including voting rights, court funding, human trafficking, cybersecurity and numerous criminal justice issues – were adopted this month by the ABA House of Delegates during a two-day session at the association’s Annual Meeting in San Francisco.
In addition to approving policy resolutions, the delegates hosted U.S. Attorney General Eric H. Holder Jr., who announced “Smart on Crime,” a strategy calling for the Justice Department to take a series of significant actions to “recalibrate America’s federal criminal justice system.” This includes a rethinking of mandatory minimum sentencing, a practice strongly opposed by the ABA, to ensure appropriate sentences for low-level, non-violent offenders.
Another highlight of the House of Delegates meeting was the presentation of the ABA Medal to former Secretary of State Hillary Rodham Clinton, who was recognized with the association’s highest honor for her distinguished career as a lawyer and public servant. Clinton, a former first lady, was the first chair of the ABA Commission on Women in the Profession and went on to fight for gender equality and the rule of law as a U.S. senator and secretary of state. Her acceptance speech focused on ensuring voting rights for all Americans.
During the delegates’ Aug. 12 session, outgoing ABA President Laurel G. Bellows passed the gavel to New York lawyer James R. Silkenat, who said his presidential year will focus on access to justice and jobs for law school graduates (see article, page 5). William C. Hubbard will serve as president-elect for the 2013-14 year.
Supreme Court Justice Anthony M. Kennedy, in his address to the Opening Assembly, urged the ABA to continue to bring the issues of human trafficking to the world’s attention.
The following is a summary of legislative resolutions approved by the House of Delegates.
Attorney-client Privilege. Adopts principles that should be applied in determining the availability of attorney-client privilege for law firm consultation with in-house counsel, and reaffirms existing association policy that confidential communications between personnel of a corporation or other entity and that entity’s in-house counsel should be protected by the attorney-client privilege to the same extent a confidential communication with outside counsel would be protected.
Court Funding. Urges governments, legislative bodies and governmental agencies to adopt laws and policies that ensure full and adequate court funding. Adopts the Principles for Judicial Administration, dated August 2013, as appropriate guidance for states desiring to establish principles for judicial administration in their efforts to restructure court services and secure adequate court funding.
Access to Justice Commissions. Urges establishment of access to justice commissions or comparable bodies in all states and territories with a core charge to expand access to civil justice at all levels for low-income and disadvantaged people. Urges ABA members to support state or territorial supreme court initiatives to create and promote access to justice commissions or comparable bodies.
Judgeships. Supports enactment of comprehensive legislation to authorize needed permanent and temporary judgeships, with particular focus on the federal districts with identified judicial emergencies. Urges prompt filling of judicial vacancies, particularly for vacancies in districts with identified judicial emergencies.
Children and Violence. Urges prompt implementation of “Defending Childhood,” the December 2012 report of the U.S. Attorney General’s National Task Force on Children’s Exposure to Violence, and urges federal, state, territorial and tribal governments and courts to implement promptly the report’s recommendations. Urges collaboration among state and local government entities, bar associations, legal services organizations and other providers to develop training that educates the legal profession to help promote the practices proposed in the report.
“Gay Panic” Defenses. Urges governments to take legislative action to curtail the availability and effectiveness of the “gay panic” and “trans panic” defenses, which seek to partially or completely excuse crimes such as murder and assault on the grounds that the victim’s sexual orientation or gender identity is to blame for the defendant’s violent reaction. Remedial legislation should specify that neither a non-violent sexual advance nor the discovery of a person’s sex or gender identity constitutes legally adequate provocation to mitigate the crime of murder to manslaughter, or to mitigate the severity of any non-capital crime.
Mental Health/Substance Abuse. Urge governments to enact legislation to provide more services to youth in the juvenile justice system with co-occurring mental health and substance abuse disorders, and to review privacy regulations to facilitate more effective treatment and avoid further involvement in the juvenile justice system.
Child Abuse and Neglect. Urges governments to review their child abuse and neglect laws to improve government responsiveness while respecting the rights of children and families, and to determine what changes, if any, are appropriate.
Mens Rea. Urges governments to re-examine strict liability offenses to determine whether the absence of a mens rea (criminal intent) element results in imposition of unwarranted punishment on defendants who lacked any culpable state of mind in performing acts that were not malum in se (naturally evil), to prescribe specific mens rea elements for all crimes other than strict liability offenses, and to assure that strict liability crimes do not permit a convicted individual to be incarcerated.
Plea Agreements. Opposes – and urges judges to reject – plea or sentencing agreements that waive a criminal defendant’s post-conviction claims addressing ineffective assistance of counsel, prosecutorial misconduct or destruction of evidence unless based upon past instances of such conduct that are specifically identified in the plea or sentencing agreement or transcript of the proceedings.
Fair Trial and Public Discourse. Adopts the black letter of the ABA Criminal Justice Standards on Fair Trial and Public Discourse, dated August 2013, to supplant the ABA Criminal Justice Standards on Fair Trial and Free Press.
Treatment. Supports the rights of all Americans, particularly the nation’s veterans, to access adequate mental health and substance use disorder treatment services and coverage as required under federal and state law.
Adult Guardianship. Urges courts with jurisdiction over adult guardianship and governmental agencies that administer representative payment programs for benefits to collaborate on information sharing, training and education in order to protect vulnerable individuals with fiduciaries who make financial decisions on their behalf.
Supplemental Security Income. Urges Congress to enact the Supplemental Security Income (SSI) Restoration Act of 2013 (H.R. 1601) or similar legislation that strengthens SSI by updating the resources limit to account for inflation, increasing the general and earned income disregards, eliminating a reduction in benefits for in-kind support and maintenance, and repealing the transfer penalty.
Voting Rights. Urges Congress to act expeditiously to preserve and protect voting rights by legislating a coverage formula setting forth criteria by which a jurisdiction shall or shall not be subject to Section 5 preclearance and/or by enacting other remedial amendments to the Voting Rights Act of 1965, including, but not be limited to, strengthening the litigation remedy available under Section 2 or expanding the bail-in provision under Section 3 (or some combination of these concepts) in response to the recent Supreme Court decision in Shelby County v. Holder.
Election Delays. Urges states, localities and territories to analyze their election systems and recent experiences with election delays and, if needed, enact appropriate legislation or administrative rules to address election delays. Urges the federal government to enforce the deadline for creating statewide databases imposed by the Help America Vote Act.
Sustainable Development. Reaffirms the ABA’s commitment to sustainable development and defines sustainable development as “the promotion of an economically, socially and environmentally sustainable future for our planet and for present and future generations.”
Right to Housing. Urges governments to promote the human right to adequate housing for all (codified in the International Covenant on Economic, Social & Cultural Rights) through increased funding, development and implementation of affordable housing strategies, and to prevent infringement of that right.
Uniform State Law. Approves the Uniform Prevention of and Remedies for Human Trafficking Act, promulgated by the National Conference of Commissioners on Uniform State Laws to provide a comprehensive response to human trafficking.
Child Welfare. Urges full implementation of, funding for, and compliance with the Indian Child Welfare Act (25 U.S.C. §§1901-63). Urges collaboration among state and tribal courts and others, and increases in federal financial support provided to tribes and tribal courts to enhance services to American Indian and Alaska Native children and their families and to the legal and judicial systems that serve them.
Intellectual Property Law
Patent Claims. Supports the authority of the U.S. Patent and Trademark Office to cancel a patent claim in a proceeding authorized by law to review the patentability of issued claims, and supports the authority of a court to dismiss a pending action with respect to any patent claims, notwithstanding an earlier conflicting non-final court judgment relating to the claim.
Information Exchange. Urges states’ highest courts and lawyer regulatory authorities to coordinate with their foreign regulatory counterparts and to enter into voluntary arrangements to facilitate the exchange of relevant information, consistent with the jurisdictions’ rules regarding the admission, licensure, disciplinary status and confidentiality of information regarding lawyers licensed in their respective jurisdictions. Adopts the Guidelines for an International Regulatory Information Exchange, dated August 2013.
Statutes of Limitation. Urges all countries, consistent with international law, not to apply statutes of limitation with respect to genocide, crimes against humanity and serious war crimes.
Child Abduction. Encourages the establishment of a network of U.S. federal and state judges to facilitate education and permissible communication among judges regarding the interpretation and application of the 1980 Hague Convention on the Civil Aspects of International Child Abduction.
Foreign Arbitral Awards. Affirms that the U.S. common law doctrine of forum non conveniens is not an appropriate basis for refusing to confirm or enforce arbitral awards that are subject to the provisions of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards or the Inter-American Convention on International Commercial Arbitration and that refusal on that basis is not consistent with U.S. treaty obligations under these conventions and U.S. implementing legislation.
Law School Standards. Concurs in the action of the council of the Section of Legal Education and Admissions to the Bar in making amendments, dated August 2013, to Standard 509 (Required Disclosures) of the ABA Standards and Rules of Procedure for Approval of Law Schools.
Pro Bono Standards. Adopts the black letter Standards for Programs Providing Civil Pro Bono Legal Services to Persons of Limited Means, dated August 2013, to supplant standards adopted in August 1996.
Cybersecurity. Condemns unauthorized, illegal intrusions into the computer systems and networks utilized by lawyers and law firms, and urges governmental bodies to examine and, if necessary, amend or supplement existing laws to promote deterrence and provide appropriate sanctions for such intrusions; and urges the U.S. government to work with other nations and organizations in both the public and private sectors to deter, prevent and punish illegal intrusions. Supports governmental measures to combat intrusions that respect – and oppose those that erode – the attorney-client privilege, the work product doctrine, the confidential lawyer-client relationship, or traditional state court regulation of lawyers.
Science and Technology
Electronic Privacy. Urges Congress to amend the Electronic Communications Act to reflect the technological and societal changes that have occurred since the original passage of the statute in 1986.