The ABA House of Delegates, convening Feb. 11 during the association’s Midyear Meeting in Dallas, approved numerous new policies that included resolutions calling for protection of human trafficking victims, supporting adequate funding for the federal courts and legal services, and supporting greater disclosure of campaign spending.
The delegates also adopted the final four recommendations of the Commission on Ethics 20/20, which proposed revisions to the ABA Model Rules of Professional Conduct that focus on advances in technology and the globalization of legal practice.
The following is a summary of new policies approved by the delegates.
Access to Justice
Federal Courts and Legal Services Corporation. Urges federal elected officials, as they consider deficit reduction for fiscal year 2013 and beyond, to maintain access to justice by ensuring adequate funding for the federal courts and the Legal Services Corporation.
Legal Services. Encourages 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. This allows lawyers to provide only agreed-upon tasks, with the clients performing the remaining tasks on their own.
Government Contracts. Supports the action by the Federal Acquisition Regulatory Council in promulgating, in response to the fiscal year 2009 National Defense Authorization Act, the 2011 rule on preventing personal conflicts of interest for contractor employees performing acquisition functions. This includes model contract language focusing on the activity likely to give rise to such conflicts as well as the significant risks the conflicts present.
Bankruptcy Judges. Supports the position that U.S. bankruptcy judges have the authority, upon the consent of all the parties, to hear, determine and enter final orders and judgments in proceedings that, while they may be among those designated as “core” within the meaning of 28 U.S.C. §157(b), may not otherwise be heard and determined by a non-Article III tribunal absent the parties’ consent.
Indigent Defense Services. Urges Congress to establish, with sufficient funding, an independent federally funded Center for Indigent Defense Services to assist 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.
Excessive Caseloads. Urges 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 in accordance with ethical obligations.
Prosecutor Training. Urges the federal government to restore, maintain and, where appropriate, increase funding to organizations that provide training to state and local prosecutors to better promote justice, increase public safety, and prevent wrongful convictions.
Juvenile Immigration Status. Urges federal, state, territorial, tribal and local courts to ensure that defense counsel for a juvenile in a criminal or juvenile adjudication of delinquency proceeding inquire and investigate a juvenile defendant’s immigration status and inform the defendant about possible collateral consequences. Also supports training about immigration consequences of convictions and any available relief from such consequences.
Grand Jury. Urges the Judicial Conference of the United States to amend the Model Grand Jury Charge to clarify that the grand jury should be instructed to consider charges and vote separately on each individual if charges are made against more than one person.
Campaign Spending. Supports efforts to increase disclosure of political and campaign spending, and urges Congress to require organizations that are not required to do so by current law as applied by the Federal Election Commission to disclose the source of funds used for making electioneering communications and expenditures and the amount spent.
Multijurisdictional Practice. Amends Rule 5.5(d) of the ABA Model Rules of Professional Conduct to permit foreign lawyers to serve as in-house counsel in the United States, but with the added requirement that foreign lawyers not advise on U.S. law except in consultation with a U.S.-licensed lawyer.
Registration as In-House Counsel. Complements the resolution above by amending the 2008 ABA Model Rule for Registration of In-House Counsel to permit foreign lawyers to serve as in-house counsel in the United States but with added requirements.
Court Appearances. Amends the ABA Model Rule on Pro Hac Vice Admission to provide judges with guidance about whether to grant limited and temporary practice authority to foreign lawyers to appear in U.S. courts.
Conflicts of Interest. Amends Model Rule 8.5 of the ABA Model Rules of Professional Conduct to address conflicts-related choice of law issues, particularly those that are difficult to resolve when a lawyer’s representation of a client involves a matter that relates to several U.S. or foreign jurisdictions simultaneously.
Victim Prosecution. Urges governments to enact laws and regulations and to develop policies to assure that once an individual has been identified as an adult or minor victim of human trafficking, that individual should not be subject to arrest, prosecution or punishment for crimes related to their prostitution or other nonviolent crimes that are a direct result of their status as a victim of human trafficking.
Victim Defense. Urges governments to enact legislation allowing adult or minor human trafficking victims charged with prostitution-related offenses or other non-violent offenses that are a direct result of their being trafficked to assert an affirmative defense of being a human trafficking victim.
Criminal Convictions. Urges governments to aid human trafficking victims 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.
Training Programs. Urges bar associations, working with professionals with subject-matter expertise in human trafficking, to develop and implement training programs for judges, prosecutors, defense counsel, law enforcement officers and other investigators to enable them to identify adult and minor victims of human trafficking and to direct them to agencies that offer social and legal services and benefits designed to assist such victims.
Patent Protection. Supports 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.
Direct Infringement. Supports clarification of the standards for finding direct patent infringement under 35 U.S.C. §271(a) in cases requiring a multiple-step process where separate entities collectively, but not individually, perform the required steps of the patented process.
Specialization. Reaccredits for five years the following specialty certification programs for lawyers: the Elder Law Program of the National Elder Law Foundation of Tucson, Arizona; and the Legal Malpractice Program and the Medical Malpractice Program of the American Board of Professional Liability Attorneys of Atlanta, Georgia.
Paralegals. Grants approval and reapproval to several paralegal education programs, withdraws the approval of three programs at the request of the institutions, and extends the term of approval to several paralegal education programs.
Jury Trials. Amends certain principles of the 2005 Principles for Juries and Jury Trials concerning judges’ and lawyers’ duty to preserve the jury trial, expanding the concept of jurors talking about the case to any form of communication, including non-English speakers in the jury pool, and protecting juror privacy with regard to juror questionnaires.
Public Contract Law
Federal Claims. Urges Congress to repeal and replace 28 U.S.C. §1500, as recommended by the Administrative Conference of the United States, to eliminate unnecessary procedural obstacles to the fair and efficient review of claims against the United States in the U.S. Court of Federal Claims.
Medicare Secondary Payer. Supports timely and efficient resolution of requests from a claimant or applicable plan for conditional payment reimbursement where Medicare has a right to reimbursement from a recovery resulting from a settlement, judgment or award for payments. Urges Congress and the Department of Health and Human Services to establish reasonable time limits and procedures for responding to such requests.
Uniform State Laws
The House of Delegates approved the following uniform state laws: Uniform Asset Freezing Orders Act; Uniform Deployed Parents Custody and Visitation Act; and Uniform Premarital and Marital Agreements Act.
During the week-long meeting, the association announced the election of William C. Hubbard, of South Carolina, to be the ABA’s president-elect nominee in line to assume the presidency in August 2014 (see article, page 4).
In addition, the Board of Governors approved the association’s Legislative and Governmental Priorities for the first session of the 113th Congress. The selection of priorities is based on a survey of bar leaders and ABA members and a joint recommendation from the Standing Committee on Governmental Affairs and the Governmental Affairs Office. This year’s categories are:
• Access to Legal Services;
• Campaign Finance and Election Law Reform;
• Criminal Justice System Improvements and Gun Violence Prevention;
• Elimination of Discrimination;
• Immigration Reform;
• Independence of the Judiciary;
• Independence of the Legal Profession;
• International Rule of Law; and
• National Security and Civil Liberties.