Legislative Priorities for the 119th Congress

ACCESS TO LEGAL SERVICES

Increase Funding for the Legal Services Corporation

The Preamble to the U.S. Constitution states that the first enumerated function of government is to “establish justice,” but equal justice under law cannot be fulfilled without full access to our justice system. Unfortunately, millions of low-income Americans cannot afford the legal assistance they need to access the justice system and resolve their basic civil legal problems. To address this problem, the ABA will continue to urge Congress to support robust funding for the Legal Services Corporation (LSC).

LSC is the nation’s largest provider of funding for civil legal aid for low-income Americans.  LSC grantees serve over 1.8 million people from every congressional district throughout the United States and directly benefits veterans, individuals in rural communities, aging Americans, disaster victims, victims of the opioid epidemic, women (who are over 71% of clients), and many others.

Unfortunately, LSC has been under-resourced for decades. The COVID-19 pandemic and multiple devastating natural disasters have made the funding deficit even more acute due to significantly increased demand for legal aid nationwide. Most recently, LSC received $560 million for FY 2024. Unlike several other federal programs whose funding was reduced due to fiscal restraints, Congress understood the value of LSC, making it one of the programs that could maintain the same funding level as the previous fiscal year. This year, we will urge newly elected lawmakers to join that support and urge the new Administration to include in its annual budget request the robust funding that LSC requires to carry out its mission and serve the civil legal needs of low-income Americans.

Preserve Public Service Loan Forgiveness

Many problems the American people face can only be addressed through the concerted action of the private sector, the non-profit sector, and government. The private sector will always play the largest role in economic development, but non-profits and government – the public sector – play a vital role in solving the public’s problems. To deliver this assistance, the public sector requires many highly skilled professionals, such as lawyers, doctors, nurses, teachers, social workers, and others. These professionals must be licensed by the state in which they work, and in most cases, the minimum requirements for licensure include an expensive advanced degree. Over time, these positions became more difficult to consistently fill and keep filled due to their comparatively lower pay versus the private sector, particularly in rural or other underserved communities.

While new graduates can choose where they work after graduation, communities do not have discretion in whether they provide critically needed public services, particularly for positions like prosecutors, public defenders, and legal aid lawyers. But new lawyers who graduate with an average of $145,500 in student loan debt might just make $55,000 or less in these positions.

The Public Service Loan Forgiveness program was enacted to help bridge this financial gap to enable new graduates to consider careers in public service by discharging any remaining balance on their qualifying federal student loans if they first serve a minimum of 10 years in qualifying jobs while making timely, reduced payments on their loans. To date, the PSLF program has discharged $78 billion in student loan debt for more than one million borrowers who satisfied the program’s strict requirements. The gap between the high cost of acquiring a professional licensure and considerably lower pay in public sector positions has only worsened over time, making preservation of the PSLF a critical priority.

The ABA was a leading organization in getting PSLF enacted. Since then, leaders in both Republican and Democratic Administrations, and influential conservatives in Congress, have proposed ending PSLF at least for graduate students because of the cost. So far, the ABA has successfully worked with other higher education allies to oppose any efforts to reduce or end the program. The 118th Congress marked the first time since its enactment that there were no proposals to end the program by the Administration or Congress. Unfortunately, legislation was announced but not introduced that would exclude lawyers from the program. We anticipate seeing that bill in the 119th Congress, especially since President-elect Trump proposed eliminating PSLF in his first term. Consequently, we recommend prioritizing the preservation and strengthening of PSLF to ensure access to public sector legal services in the 119th Congress.

CIVIC EDUCATION AND ELECTION INTEGRITY

Our electoral process is the foundation of U.S. democracy. Although the recent 2024 presidential election cycle went relatively smoothly, much remains to be done to enhance election integrity and ensure citizen participation in our democratic process. Therefore, issues relating to enhancing civic education and confidence in our electoral process will continue to receive significant attention from the public and from ABA members. The ABA has many policies addressing civic education and issues related to the electoral process, including the ABA Election Administration Guidelines last updated at the 2023 Annual Meeting. Recognizing that election laws and procedures are primarily controlled at the state and local level, we recommend three areas as sub-issues, each of which consistently ranked high in our legislative priorities survey. 

Support Civic Education Initiatives

The ABA supports civic education to foster understanding of the Constitution and the rights and responsibilities of citizenship, including voting. Our policy supports federal initiatives to promote digital literacy, civic education, and public awareness to build societal resilience to domestic and foreign malign disinformation operations and to increase understanding of the importance of democracy, voting, and democratic institutions. Congress increased funding for civic education in the FY 2023 and FY 2024 appropriations process, but the challenging budget environment for the remainder of FY 2025 and for FY 2026 may put that funding in jeopardy.

Enhance Election Security and Combat Disinformation

Ensuring the security of our elections involves protecting physical infrastructure, such as voting machines and computer systems, ensuring the safety of election officials, and combatting efforts sponsored by foreign individuals or entities to spread disinformation. The ABA supports federal funding to protect the security and integrity of the federal election process and authorization for the National Institute of Standards and Technology to define federal standards and develop a certification process for cybersecurity of election systems software, infrastructure, and hardware. The ABA also supports federal legislation to prohibit the use of false, deceptive, or misleading statements and acts by foreign principals regarding the time, place, or manner of voting, to interfere with voting, registering to vote, vote tabulation, or vote reporting. In August 2023, the ABA adopted a policy urging the adoption of laws and policies that protect the safety of all election workers. While it is unlikely that any comprehensive election reform bill will be taken up by the 119^th Congress, there will be some opportunities to advocate on election security and integrity measures as a part of the annual appropriations process.

Protect Voting Rights

The ABA has long supported measures protecting the right to vote, particularly for vulnerable and historically disenfranchised populations. This includes support for the enhancement of remedies under the 1965 Voting Rights Act, in response to Shelby County v. Holder, that would provide a new, flexible coverage formula and create nationwide transparency requirements to keep citizens informed about voting changes in their community. The ABA also supports efforts to remove barriers to voting for Native Americans and Alaska Natives, the homeless and disabled, and persons with criminal convictions. Legislation to restore Section 5 preclearance provisions of the Voting Rights Act, increase voter protection for Native Americans and Alaska Natives, reduce voting barriers for the disabled, and restore voting rights for convicted persons were introduced in the 118^th Congress but none were enacted. While it is unlikely that bills addressing these issues will receive legislative attention in the 119^th Congress, protecting voting rights ranked second in importance by survey takers, and we recommend retaining it a priority.

CRIMINAL JUSTICE SYSTEM IMPROVEMENTS

Six years ago, congressional leaders pledged that the First Step Act of 2018 (FSA), Pub. L. 115-391, was merely the first in what would be a series of overdue reforms to the criminal justice system. Three Congresses later, that promise remains largely unfulfilled, although some progress has been made. Over the last two Congresses, a number of well-supported bipartisan criminal justice reform bills came close to enactment, but external influences including the release of national data reflecting increases in certain types of crime coincided with election cycles, leaving that legislation unfinished. The ABA now looks forward to working with the 119^th Congress on a wide range of bipartisan proposals impacting each stage of the criminal justice system, and we recommend focusing on the following two areas.

Support Effective Federal Sentencing and Corrections Reforms

The ABA supports federal sentencing reform aimed at eliminating mandatory minimum sentences and expanding alternatives to incarceration where appropriate. While legislation has been introduced in recent Congresses to provide “safety valves” to allow judges to depart from mandatory minimum sentences for non-violent, lower-level offenders, mandatory minimums for almost all other offenses remain intact. The ABA also supports “second look” legislation that would allow persons to have their lengthy sentences reviewed once they had served at least 10 years of the sentence, which is important given the absence of parole at the federal level. This past year marked the 50th anniversary of national policy favoring incarceration as the primary strategy for addressing crime without data or experience supporting that approach. Yet, draconian policies have resulted in the United States incarcerating people at a higher rate than any other nation without producing intended outcomes. It is time for alternative, data-driven approaches. For example, the ABA will continue to support bipartisan bills from the prior two Congresses that are expected to be reintroduced in the 119^th Congress, including the EQUAL Act (S.524/H.R.1062, 118^th Congress), which would equalize sentencing for powder and crack cocaine related offenses; the First Step Implementation Act (S. 1561/H.R.3510, 118^th) that would provide for the automatic sealing of juvenile records and allow lengthy sentences imposed on minors to be reviewed once they had served 20 years; and the Terry Technical Corrections Act (S. 1247/H.R.50, 118^th), which would fix a technical oversight in the language of the First Step Act concerning the resentencing of some people convicted of cocaine-related offenses.

The ABA seeks reforms to correctional conditions and practices. Class action litigation challenging prison conditions during the COVID-19 pandemic produced substantial evidence of chronically poor conditions and corruption within certain federal correctional facilities. This led to bipartisan outrage, oversight hearings, and passage of the ABA-supported Federal Prison Oversight Act (P.L. 118-71). Implementation and oversight of this new law will be a concern in the new Congress. The ABA will also continue to urge requiring the Bureau of Prisons to restore attorney-client privilege protections for electronic messages between lawyers and their federally incarcerated clients. Working with allies, the ABA led efforts to fix this problem over the past two Congresses largely through legislation known as the Effective Assistance of Counsel in the Digital Era Act (S. 5580/H.R. 10450, 118^th Congress). The act was overwhelmingly passed the House of Representatives in two prior Congresses and has bipartisan sponsorship in the Senate. Our champions in both chambers plan to reintroduce the legislation in early 2025.

Promote Successful Strategies for Re-Entry and Victim Support

The ABA supports legislation to curb recidivism by ensuring that people completing a period of incarceration have access to the programs they need to make successful transitions back into society. Specifically, the ABA supports the reduction and elimination of collateral consequences of criminal convictions that serve solely as a second form of punishment and deny life-sustaining support. These legal barriers undermine government investment in “second chance” programs and deny people access to the resources needed for successful reintegration: employment, housing, nutrition, and the ability to participate in civic life. In the 119^th Congress, we expect the return of ABA-supported bipartisan legislation to repeal a federal lifetime ban on access to SNAP benefits due to a past drug conviction. The 118th Congress unsuccessfully included this proposal in the RESTORE Act (H.R. 3479, 118^th Congress) and in the leading House and Senate Farm Bills, which govern the terms of the SNAP program (S. 5335/H.R. 8467, 118^th Congress).

The ABA strongly supports the continuation of recidivism-reducing programs under the Second Chance Reauthorization Act (S. 4477/H.R. 8028, 118^th Congress), which promotes successful community reintegration following incarceration. Last Congress, that bill was approved in the Senate by unanimous consent and placed on the consent calendar in the House, but leaders failed to call it up before they adjourned. We expect it to return in the 119^th Congress.

The ABA also supports the protection and enforcement of procedural rights, safety, and, where appropriate, legal assistance for victims of crime. The ABA urges including victims when creating alternatives to incarceration for offenders and in designing problem-solving courts such as drug courts. In the 119^th Congress, we anticipate the return of legislation such as the bipartisan Reinforcing Crime Victims’ Rights Act (H.R. 9858, 118^th Congress), which would address a wide range of victims’ rights, court procedures, and legal representation.

CYBERSECURITY AND EMERGING TECHNOLOGY

Support Responsible Artificial Intelligence Laws, Rules, and Regulations

Emerging technologies like artificial intelligence (AI) affect the daily lives of every American as well as the justice system and the practice of law. To help guide the legal profession and policymakers in this area, the ABA has a Task Force on Law and Artificial Intelligence and a Cybersecurity Legal Task Force. The ABA also has policy urging organizations that design, develop, deploy, and use AI systems and capabilities to follow specified guidelines. We will also urge the new Administration and Congress to follow them too when making policy decisions.

In particular, these fundamental guidelines state that: (1) AI services and products should be subject to human authority, oversight, and control; (2) AI developers should ensure their design process is transparent and documents key decisions related to risk, data selection criteria, and projected outcomes; and (3) individuals and organizations should be held accountable for any harm caused by AI services and products they produce.

Ensure Americans Living in Rural and Underserved Areas Have Access to Broadband 

Access to quality high-speed internet services, commonly known as broadband, has become essential to living in the modern era, and is relied on for many services, including seeking legal counsel. However, many Americans in rural areas and underserved communities lack access to quality broadband options. Congress attempted to help alleviate this problem in 2021 when it passed the bipartisan Infrastructure Investment and Jobs Act, which included $42.5 billion intended to expand broadband services into to unserved, and mostly rural, communities. Unfortunately, the federal government has not taken any action to utilize and deploy these resources. This inaction has potentially put people at risk, especially those who suffered through natural disasters, including victims stranded in the aftermath of Hurricanes Helene and Milton where Americans were forced to rely on the generosity of private companies, such as Starlink, for critical Internet services.
 
The ABA will continue to urge Congress to appropriate funds and federal agencies to effectively and efficiently use those funds to ensure that Americans located in rural areas and in underserved communities have access to broadband. 

ELIMINATION OF DISCRIMINATION

Eliminate Bias in the Criminal Justice System

The ABA is committed to eliminating racial, ethnic, and other improper bias in the justice system by leveraging research to target points in the system vulnerable to bias, whether by human decision-making or tools that may rely on biased assumptions or datasets. In particular, the ABA focuses its efforts on the treatment of and disproportionate outcomes for protected classes of individuals, such as those based on race, ethnicity, religion, disability, gender, sexual orientation, or socioeconomic status. In the 119^th Congress, the ABA will advise congressional leaders on dozens of ABA policies and standards that impact policing, prosecution, pretrial detention, sentencing, correctional conditions, release decisions, and evaluation of collateral consequences of convictions and advocate on specific issues as opportunities arise.

Prevent Gender and LGBTQ+ Discrimination

The ABA supports legislation and other governmental actions prohibiting discrimination on the basis of sexual orientation and gender identity. This includes support for the Paycheck Fairness Act and the Equality Act, both of which passed the House in the 117th Congress and were reintroduced in the 118th Congress but received no attention. If enacted, the Paycheck Fairness Act would require men and women in the workforce to receive equal pay for equal work. The Equality Act would provide consistent and explicit anti-discrimination protections for LGBTQ+ people across key areas of life, including employment, housing, credit, education, public spaces and services, federally funded programs, and jury service. While we expect these and similar bills to be reintroduced during the 119^th Congress, we do not expect significant progress given the narrow majority. However, we recommend retaining this sub-issue given its importance to our members, and we will oppose efforts to roll back existing protections if opportunities arise. 

IMMIGRATION REFORM

Ensure Access to Counsel and Due Process

The ABA supports measures to increase due process safeguards for those in removal proceedings. Persons in immigration proceedings do not have a right to appointed counsel even though they face serious consequences, such as detention and removal from the country. Representation rates are low—as of May 2024, only 29% of all noncitizens are represented in their proceedings. The ABA supports measures to increase access to counsel and legal information, including advocating for increased funding for the Department of Justice’s Legal Orientation Program, which provides legal rights presentations and pro bono screening for detained individuals and helps make immigration court proceedings more efficient. We support government-appointed counsel for the indigent and particularly vulnerable populations, such as children, persons with mental illness, and persons with disabilities.

Limit Mandatory Detention and Use Alternatives to Detention

The ABA opposes the detention of individuals in immigration proceedings except in extraordinary circumstances and supports increasing the use of alternatives to detention. Immigration and Customs Enforcement’s use of immigration detention has increased significantly from the 1990s to the present. As of late 2024, there are nearly 37,500 individuals held in ICE custody on immigration violations throughout the country. Detention conditions are often deplorable and can be especially traumatic for vulnerable populations, such as children and asylum seekers. Furthermore, all persons in detention have a significantly decreased ability to access counsel. The ABA will continue to advocate for using detention only in extraordinary circumstances and to support less costly but effective alternatives to detention programs.

Strengthen Access to Humanitarian Protection

The ABA supports ensuring access to legal protection for refugees, asylum seekers, and others deserving of humanitarian refuge. In the fall of 2024, a new border enforcement plan took effect that significantly restricts the ability of asylum seekers to access our nation’s asylum system. The measures include closing the border when immigrants at the border exceed a predetermined number, requiring immigrants to affirmatively ask for protection by “manifesting” fear, and barring most applicants for asylum who have transferred through another country to get to the U.S. Many of these policies violate fundamental notions of fairness and do not comport with the United States’ international treaty obligations or domestic statutory requirements. The ABA will advocate to rescind some of these programs and urge Congress to strengthen the asylum and refugee legal framework.

Strengthen the Independence and Efficiency of the Immigration Court and Adjudication System

With more than two million cases pending, the immigration court system is in crisis. While there has been some progress in increasing resources for the courts over the past two years, the backlog continues to grow. Many of these issues stem from the structural flaw of having the immigration courts placed under the authority of the DOJ. The ABA supports restructuring the system by making immigration courts independent Article I courts. In the 118^th Congress, H.R. 7724, the Real Courts, Rule of Law Act of 2024, was re-introduced, but has never made it out of the Committee on the Judiciary.

Given that enactment of such a major initiative will likely continue to take time, the ABA also supports incremental improvements to the current immigration court system to reduce delays, ensure due process, and bolster the independence of immigration judges. To this end, the ABA supports increasing the number of immigration judges and support staff, implementing changes to address inefficiencies within the current adjudication system, and instituting improvements to the hiring, training, and disciplinary functions.

INDEPENDENCE OF THE JUDICIARY

Preserve Judicial Independence and Increase Public Confidence in the Federal Courts

Preserving and protecting the independence of the Federal Judiciary has long been a core mission and concern of the ABA. The most pressing and serious threats to judicial independence today include the growing perception that the Federal Judiciary has become more politicized, which has resulted in a sharp decline in public confidence in the courts, and escalating violence and threatening rhetoric directed at our judges who render impartial but unpopular decisions. During the 118^th Congress, ABA-supported bipartisan legislation was introduced in the House (H.R.8093, Jackson Lee, D-TX) and Senate (S.3984, Cornyn, R-TX) to authorize the State Justice Institute to award grants to organizations to establish a state judicial threat and resource center. Despite bipartisan support, neither received legislative attention. Similar legislation is expected to be introduced early in the 119^th Congress.

Although these ABA-supported measures would increase the security of federal judges and protect impartial decision-making by helping to prevent horrific violence against judges and family members, they do not alter public perceptions. As judges are called upon to resolve disputes involving controversial societal issues, it is inevitable that controversial decisions issued the federal courts – especially the Supreme Court – will be scrutinized through the lens of partisan politics.

The striking loss of public confidence in the courts over the past few years has been an issue of concern to the ABA and to Congress. The 119^th Congress is expected to consider several bills originally introduced last Congress that would impose a binding code of ethics on the Supreme Court, tighten judicial disclosure loopholes, bring greater transparency to outside funding sources regarding amicus briefs and judicial nominations, and more. In accordance with policy adopted in August 2022, the ABA urges the Justices of the Supreme Court to act and adopt a binding code of conduct, an issue that remains important to ABA members and received the second most comments in the open ended portion of the legislative priorities survey.

Fill Judicial Vacancies Promptly & Appropriate Adequate Resources for Federal Courts

The Federal Judiciary requires sufficient resources to perform the core functions the Constitution and Congress assign to it. This includes sufficient judges to dispense impartial justice promptly and adequate funding for its day-to-day operations.

The 119^th Congress convened on January 3, 2025, with 39 Article III judicial vacancies, which translates to a 4.5% vacancy rate. Promptly nominating professionally qualified individuals that represent the diversity of this nation will enhance the ability of the federal courts to dispense timely justice and promote public confidence in the courts.

To address the staggering increase in federal court case filings, the Judicial Conference asked the 118^th Congress to create 66 new district court judgeships in specific locations on a phased-in basis. Both the House and Senate passed the ABA-supported bipartisan “Judicial Understaffing Delays Getting Emergencies Solved Act of 2024” (the JUDGES Act of 2024) to make these judgeships, but the President vetoed the bill on December 23rd. Creating these much-needed judgeships remains an ABA priority that we will continue to pursue in the 119^th Congress. 

Congress and the Executive Branch have also generally respected the fiscal needs of the Federal Judiciary. The Administrative Office of the U.S. Courts reports that for FY 2025, “the Judiciary requests $1.7 billion, an increase of $278.9 million (19.8%) over the FY 2024 level.” This request includes funding to strengthen court security and support federal defender organization staffing requirements and all projected panel attorney representations in FY 2025. For the Court Security account, the Judiciary requests $805.9 million, an increase of $39.5 million (5.2%) over FY 2024. The ABA will continue to advocate for adequate funding for the federal courts and oppose efforts to deny the Judicial Branch the resources it needs to operate.

INTERNATIONAL RULE OF LAW

U.S. engagement and leadership around the globe play a critical role in maintaining our position as a world leader. If the U.S. fails to invest adequate resources internationally, countries that do not share our commitment to democratic values and free markets will serve as destabilizing forces, to the detriment of U.S. national security and economic interests. While these sub-issues appear to be ranked comparatively lower than several other sub-issues, the international rule of law remains critical to the ABA’s goals and a priority given it significant impact on the ABA’s operational activities, including major technical assistance legal programs.

Combat Corruption and Authoritarian Repression of Civil Society

High-level corruption threatens democratic governance and the rule of law around the world and often goes hand in hand with efforts to threaten judges and repress civil society actors, such as lawyers, human rights defenders, and journalists, seeking to hold governments accountable. The ABA supports efforts to combat kleptocracy in countries where government institutions have been captured by corrupt actors, including supporting the efforts of national justice sectors and anti-corruption personnel, and using existing sanction authorities against those who threaten justice-sector personnel. The ABA has also long supported efforts to protect independence of the judiciary and to prevent the harassment of and attacks against judges, lawyers, and human rights defenders. In August 2023, the ABA adopted policy urging all governments to adopt laws and measures to protect the peaceful and lawful activities of civil society actors and organizations.

Support Robust Funding for the International Affairs Budget and Increased Funding for Programs that Promote Democracy, Human Rights, and the Rule of Law

Promoting the international rule of law through both U.S. governmental policies and the ABA’s international technical legal assistance programs is important to ABA members and the international community. The international affairs budget is a key component in that effort. The ABA supports adequate funding for the overall U.S. international affairs budget and increased funding specifically for domestic and international agencies and programs that promote democracy, human rights, and the rule of law, including through the ABA Rule of Law Initiative and Center for Human Rights.

The ABA also supports the prompt payment of the United States’ assessed dues and voluntary contributions to the United Nations and other critical international organizations. For the U.S. to retain its longstanding leadership role in the international community, it must devote adequate resources to the U.S. international affairs budget. However, the prior Trump Administration had proposed significant cuts to the international affairs budget, and it is expected to do so again. It will be important for the ABA to continue to advocate for funding and policies to maintain our global leadership and represent our values as a country.

Urge U.S. Engagement and Leadership in International Organizations and Agreements

In addition to funding support, U.S. engagement and leadership in multilateral and international organizations are critical to promoting the rule of law. The ABA supports the U.S.’s rejoining or remaining engaged with key international bodies, such as the World Health Organization, UN Human Rights Council, and the UN Educational, Scientific and Cultural Organization (UNESCO). Some progress has been made in the last two years, with the U.S. rejoining the UN Human Rights Council and the Paris Climate Agreement. However, the 119^th Congress will bring potential challenges to funding for and continued U.S. engagement in these entities.

The ABA supports U.S. ratification of international human rights treaties such as the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of Persons with Disabilities, as well as treaties that facilitate international business, including the Convention on International Settlement Agreements Resulting from Mediation (Singapore Convention). The ABA also supports U.S. ratification of treaties and other agreements regarding climate change.

These organizations and agreements act as critical force-multipliers in promoting international peace and security, strengthening democratic governance, promoting sustainable development, and protecting human rights. While none is perfect, the United States can lead reforms from a stronger position when we actively engage and fully meet our financial commitments. 

JUDICIAL OVERSIGHT OF THE LEGAL PROFESSION

Preserve State Supreme Courts’ Primary Authority to Regulate the Legal Profession

The ABA has consistently opposed legislation, proposed agency rules, and other measures that would impose burdensome regulations on lawyers engaged in the practice of law and undermine judicial regulation and oversight of the legal profession. In 2022, the ABA and its state and local bar allies persuaded Congress to reject harmful legislation known as the ENABLERS Act (H.R. 5525 and proposed amendments to the FY 2023 National Defense Authorization Act) that would have regulated many lawyers and law firms as "financial institutions" under the Bank Secrecy Act and required them to report privileged and other protected client information to the government. While the ABA and its allies have continued to successfully lobby against that legislation, we were unable to prevent adoption of a new Treasury Department rule in 2024 requiring lawyers and law firms to report confidential information about their clients’ residential real estate transactions to the government and to file secret suspicious activity reports on those client transactions.

Proponents of the ENABLERS Act and other related proposals are expected to continue to press for adoption of those measures during the 119^th Congress. At least one Representative has also announced plans to seek nullification of the new Treasury Department real estate reporting rule under the Congressional Review Act early this year.

During the 118^th Congress, the ABA also worked with allies to craft legislation known as H.R. 7947, the Restoring Court Authority Over Litigation Act. The ABA and the Conference of Chief Justices support this legislation that would protect the courts’ exclusive authority to regulate and discipline lawyers engaged in litigation activities and prevent the Consumer Financial Protection Bureau (CFPB) and other federal agencies from undermining the courts’ proper role.

In light of continued congressional and agency interest in proposals that could affect the legal profession, the ABA will continue to closely monitor and oppose any legislation, proposed regulations, or other measures that would impose burdensome regulations on lawyers or undermine the attorney-client privilege, confidential lawyer-client relationship, or state supreme courts’ primary authority to regulate and oversee lawyers engaged in the practice of law.

Protect the Attorney-Client Privilege and the Lawyer’s Ethical Duty of Confidentiality

For years, the ABA has spoken out against numerous federal agency policies and proposed rules that undermine the attorney-client privilege, work product protections, and the lawyer’s ethical duty to preserve client confidentiality. For example, the ABA persuaded U.S. Customs and Border Protection to revise its border search policy in 2018 to increase protections for privileged information contained on lawyers’ laptops, cell phones, and other electronic devices. The ABA also helped convince the CFPB not to adopt a new rule in 2020 that would have expanded its discretion to disclose confidential and privileged information it receives from regulated entities to many other foreign and state agencies and other entities that exercise governmental authority.

The ABA has also been successful in reversing various federal agency policies that pressure companies to waive their attorney-client privilege and work product protections during investigations and other agency proceedings. For example, the ABA and its allies persuaded the Justice Department, Sentencing Commission, Securities and Exchange Commission, Commodity Futures Trading Commission, and other agencies to revise their policies to better protect the privilege and work product.

Despite these encouraging developments, other federal agencies, including the Treasury Department, the CFPB, other federal banking regulators, and the Federal Energy Regulatory Commission, have adopted or are considering adopting policies or rules requiring entities to disclose information protected by the attorney-client privilege, the lawyer’s ethical duty of confidentiality, or both in various situations. Therefore, the ABA must continue to engage these and other federal agencies as needed to protect the privilege, work product, and client confidentiality.

Last Updated: February 14, 2025