JUDICIAL NOMINATIONS: At the urging of the ABA and others concerned about the high vacancy rate in the federal judiciary, the Senate picked up the pace of confirming judicial nominees during the lame duck session of Congress. In an e-mail alert, the ABA asked ABA members in states with nominees pending on the floor to urge the Senate leadership to schedule up-or-down votes on 15 federal district court nominees who had been waiting more than four months for a confirmation vote. All 15 nominees had the support of their home-state senators, regardless of party affiliation, and 13 of them had been reported by the Senate Judiciary Committee with strong bipartisan support. Nine of those nominees would fill seats that the Administrative Office of the U.S. Courts had classified as “judicial emergencies.” A “judicial emergency” is defined as any vacancy where weighted filings are in excess of 600 per judgeship, any vacancy in existence more than 18 months where weighted filings are between 430 to 600 per judgeship, and any court with more than one authorized judgeship and only one active judge. The ABA maintained that failure to vote on pending nominees before adjournment would waste taxpayer dollars and government resources because the president and Senate would have to go through the entire process again to fill the same vacancies once the new 113th Congress begins. Because of the persistent efforts of the ABA and other concerned groups, the administration and the Senate majority made the filling of judicial vacancies a higher priority during the 112th Congress. After confirming only 64 Article III judges during the 111th Congress, the Senate had confirmed 110 judges as the 112th Congress moved toward adjournment in late December and the vacancy rate was reduced to approximately 8 percent after hovering well above 10 percent for over 30 months.
USPTO CODE OF PROFESSIONAL RESPONSIBLITY: ABA President Laurel G. Bellows submitted comments Dec. 17 to the U.S. Patent and Trademark Office urging the agency to base its new Patent and Trademark Rules of Professional Conduct on the ABA Model Rules of Professional Conduct (Model Rules) as they were updated in August 2012. The USPTO published a notice Oct. 18 proposing changes in its current rules for those representing clients before the agency. The USPTO indicated in the notice that its proposed changes reflected the ABA’s code only as updated through 2011, explaining that ABA’s 2012 revisions “have not been incorporated into these proposed rules since the states have not adopted those changes at this time.” The ABA’s 2012 revisions amended the Model Rules relating to technology and confidentiality, technology and client development, outsourcing, practice pending admission, admission by motion, and detection of conflicts of interest. The amendments reflected three years of work by the ABA Commission on Ethics 20/20 and updated the Model Rules in light of advances in technology and global legal practice developments. The ABA comments maintained that it would be prudent for the USPTO to provide greater guidance to the patent and trademark bar in these areas now rather than wait for state implementation and that the implementation process is well under way for Ethics 20/20 changes in the Model Code. The ABA comments also made several recommendations regarding the USPTO’s proposed new code and offered assistance to complete the process. The USPTO also is proposing revisions in its existing procedural rules governing disciplinary investigations and proceedings.