April 01, 2012

Washington News Briefs

STOCK ACT: President Obama signed legislation April 4 to prevent members of Congress and congressional employees from using nonpublic information derived from their official positions for insider trading for their benefit. P.L. 112-105, the  Stop Trading on Congressional Knowledge Act of 2012 (STOCK Act), does not include a controversial provision opposed by the ABA Business Law Section and the association’s Task Force on Financial Markets Regulatory Reform  that would have had significant unintended adverse consequences for business lawyers. The provision, Section 17 of the Senate-passed version of the legislation, would have amended the Lobbying Disclosure Act of 1995 to cover “political intelligence activities” and thereby regulated any “political intelligence consultants” who engage in these activities. Section 17 would have required a person to register as a “political intelligence consultant” as a result of any “political intelligence contact” with a covered executive or legislative branch official that could have consisted of only a single telephone call, a single email or letter, or attending a single meeting on behalf of a client. In a March 2 letter to House and Senate leaders, ABA Business Law Section Chair Linda J. Rusch expressed opposition to the provision from both her section and the ABA task force, explaining that business lawyers engage on a regular basis in dialogue with government officials regarding matters of importance to their clients and often reach out to government officials to seek clarification and guidance with respect to the application of rules and regulations to particular fact situations. The provisions, Rusch concluded, would have required many business lawyers to register under the Lobbying Disclosure Act, which would impose a significant burden on lawyers and undermine their ethical obligations of client confidentiality and zealous representation.

IMMIGRATION REPRESENTATION: The ABA expressed support last month for improving access to counsel for individuals in immigration removal proceedings and urged the Executive Office for Immigration Review (EOIR) to strengthen the requirements for individuals seeking accreditation by the Board of Immigration Appeals (BIA) to provide those services. Pointing out that several studies have found that the presence of representation has a significant impact on case outcomes in immigration court, ABA Governmental Affairs Director Thomas M. Susman offered recommendations to EOIR for ensuring that appropriate organizations are recognized and accredited representatives are competent. He said the ABA recommends that the BIA ensure that a competent attorney is available to provide mentoring and supervision to accredited representatives and that BIA-accredited organizations provide free or low-cost services, depending on the financial need of the individual in need of services. The association also recommends that minimum training requirements and continuing legal education be established for accredited representatives, who should accept only cases that are appropriate to their skill levels. In addition, EOIR should conduct outreach, particularly in areas lacking in legal services agencies, to encourage existing organizations to seek BIA accreditation. Susman noted that this is of particular concern for immigrants in remote detention facilities.

PRIVILEGED INFORMATION: The House passed legislation by voice vote March 26 that would create a single, consistent standard for the treatment of privileged information submitted to all federal agencies that supervise banks, including the new Consumer Financial Protection Bureau (CFPB). H.R. 4014 would amend the Federal Deposit Insurance Act to clarify that when banks or other supervised entities submit privileged information to the CFPB during examinations or other regulatory processes, the privilege would not be waived as to third parties. The bill also would add the CFPB to the list of agencies that may share privileged information with other agencies specified in the statute without causing a waiver. In correspondence to both the House and Senate in February, ABA President Wm. T. (Bill) Robinson III said enactment of the legislation “would help ensure a more integrated, consistent and coordinated approach to the regulation of financial services providers.” The Senate is expected to pass the bill, which has bipartisan support.

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