During the Midyear Meeting in New Orleans, panelists Harriet Pearson, vice president, security counsel and chief privacy officer, IBM Corporation; Vincent I. Polley, president, KnowConnect, PLCC; and Stewart Baker, partner, Steptoe & Johnson, explored cybersecurity issues during an interactive discussion Feb. 4 entitled “Whither Cyberspace: Security, Privacy Rights, the Law and the Private Sector.” The Standing Committee on Law and National Security sponsored the event, which was moderated by standing committee Chair Harvey Rishikof.
When the ABA House of Delegates gathered in New Orleans Feb. 6 during the association’s Midyear Meeting, the delegates adopted new policies on a wide range of issues that impact the legal profession.
Other highlights of the Midyear Meeting included an appearance by Attorney General Eric H. Holder Jr. at the ABA Summit on Indigent Defense Improvement, where he announced two new Justice Department grant programs for researching indigent defense issues and helping jurisdictions improve their public defender and assigned counsel systems. Also featured during the meeting was a “Conversation with Justice Antonin Scalia,” during which he shared his experiences and perspectives from 25 years on the Supreme Court.
During the meeting the association also nominated James R. Silkenat, of New York, to be ABA president-elect. If elected at the Annual Meeting this August, Silkenat will serve one year as president-elect before assuming the ABA presidency in August 2013 for a one-year term (see article).
In addition, the Board of Governors approved the continuation of the current legislative and governmental priorities for the Second Session of the 112th Congress.
The following is a summary of the recommendations approved by the delegates during their meeting.
Magistrate Judges. Supports the provisions of Title 28, U.S.C. § 636 (c)(1), which grants U.S. magistrate judges, upon the consent of the parties, the power to conduct any and all proceedings in a jury or non-jury civil matter in federal court and to order the entry of judgment in the case, as being consistent with and not violative of Article III of the U.S. Constitution.
Model Time Standards. Amends the Model Time Standards for State Courts, dated February 2012, to establish one single set of standards for the timely disposition of cases by bringing them into alignment with those adopted by the Conference of Chief Justices and the Conference of State Court Administrators.
Language Access Services. Adopts the ABA Standards for Language Access in Courts, dated February 2012. Urges funding for and implementation of standards by all courts and adjudicatory tribunals.
Access to Records. Adopts the black letter ABA Criminal Justice Standards on Law Enforcement Access to Third Party Records, dated February 2012, regarding law enforcement investigatory access to, and storage and disclosure of, records maintained by institutional third parties such as banks, hospitals and Internet service providers. The new standards provide a framework to assist legislatures, courts and administrative agencies in making decisions regarding the protection of such records that balance the needs of law enforcement and the interests of privacy, freedom of expression, and social participation.
Forensic Science. Urges governments at various levels to adopt pretrial discovery procedures requiring laboratories to produce, for use in criminal trials, comprehensive and comprehensible laboratory and forensic science reports that meet specified criteria.
Expert Testimony. Urges judges and lawyers to consider specified factors in determining the manner in which expert testimony should be presented to a jury and in instructing the jury in its evaluation of expert scientific testimony in criminal and delinquency proceedings.
Jury Voir Dire. Urges judges and lawyers to consider specific factors in formulating jury voir dire in criminal cases where forensic science evidence is contested, including potential jurors’ understanding of general scientific principles, principles relevant to forensic science, and preconceptions or bias with respect to forensic scientific principles.
Public Housing. Urges the federal government to encourage public housing authorities and other owners of federally subsidized rental housing to reevaluate their current rules regarding admission, termination and additions to households to ensure that those rules do not unfairly punish persons with criminal records.
Therapeutic Courts. Supports legislation, policies and practices that allow equal and uniform access to therapeutic courts and problem-solving sentencing alternatives, regardless of the custody or detention status of the individual. Opposes interpretations of, and amendments to, the Immigration and Nationality Act that would classify participation in a diversionary program as a “conviction” for immigration purposes.
Jury Instructions. Urges courts to adopt jury instructions that are understandable to jurors untrained in the law and to provide such instructions to jurors in written form for the penalty phase of capital cases.
Law School Admissions. Urges all entities that administer a law school admission test to provide appropriate accommodations for test takers with disabilities.
Service Animals. Urges all federal, state, territorial and local legislative bodies to repeal or amend all laws or policies inconsistent with the regulations implementing the Americans with Disabilities Act (ADA) and to implement policies to ensure that persons with disabilities utilizing service animals are provided access to services, programs and activities of public entities and public accommodations in compliance with the regulations implementing the ADA.
Rape Definition. Urges the Federal Bureau of Investigation to start collecting data immediately using the expanded definition of rape in the Uniform Crime Reporting Summary Reporting Program, which now includes, regardless of gender or presence of force, all forms of non-consensual penetration of a vagina or anus and all forms of non-consensual penetration by a sexual organ of any orifice.
Intellectual Property Law
Patent Infringement. Supports in principle the long-established precedent that patent infringement must be proven by a preponderance of the evidence, and the fact that a project or process accused of infringement is itself separately patented does not alter the burden of proof but may be relevant to the issue of infringement under the doctrine of equivalents.
Foreign Data Protection. Urges courts, where possible, to consider and respect the data protection and privacy laws of any applicable foreign sovereign and the interest of any person who is subject to or benefits from such laws with regard to data sought in discovery in civil litigation.
Human Rights. Endorses the United Nations’ Protect, Respect and Remedy: A Framework for Business and Human Rights; its companion, Guiding Principles for Implementing the Framework; and the “Human Rights” provisions of the Organization for Economic Cooperation and Development’s Guidelines for Multinational Enterprises.
Law School Standards. Concurs in the action of the Council of the Section of Legal Education and Admissions to the Bar in making amendment, dated February 2012, to the following portions of the ABA Standards and Rules of Procedure for Approval of Law Schools: Standard 510, Student Loan Programs; Rule 3, Accreditation Committee Consideration; Rule 5, Jurisdiction of the Accreditation Committee; and Rule 22, Teach-Out Plan and Agreement and Law School Closure.
Student Complaints. Concurs in the action of the Council of the Section of Legal Education and Admissions to the Bar in making non-substantive clarifications to Standard 512 (Student Complaints) of the ABA Standards and Rules of Procedure for Approval of Law Schools.
Distance Education and Organizational Structure. Concurs in the action of the Council of the Section of Legal Education and Admissions to the Bar in making non-substantive clarification to Standard 306 (Distance Education) and Rule 20 (Major Change in the Organizational Structure of a Provisionally or Fully Approved Law School) of the ABA Standards and Rules of Procedure for Approval of Law Schools.
Independence of the Profession. Urges the highest courts or legislative bodies charged with the administration of justice, admission to the bar, and regulation of the legal profession to respect the organized bar’s ability and right to function independently and express its views freely. Further urges that these bodies allow the organized bar to provide specialized advice and opinion on all matters of public policy germane to the bar’s charter.
Fee Arbitration. Amends the Model Rules for Fee Arbitration, originally adopted by the House of Delegates in 1995, to increase productivity, efficiency and fairness of fee arbitration programs, which intend to provide clients and lawyers with the opportunity for fair, fast and inexpensive resolution of disputes involving fees and costs.
Lawyers Sanctions. Reaffirms the black letter of the ABA Standards for Imposing Lawyer Sanctions, as adopted in February 1986 and amended in February 1992, and rescinds adoption of the Commentary as part of its corpus. Going forward, the substance of the commentary will be periodically updated and published separately as “Annotations.”
Military Spouses. Urges state and territorial bar admission authorities to adopt rules, regulations and procedures that accommodate the unique needs of military spouse attorneys, who move frequently in support of the nation’s defense.
Delivery of Legal Services. Supports and encourages the continued efforts of solo, small firm and general practice lawyers to increase access to justice by providing legal services to those in need.
State and Local Government Law
Immunity. Supports the principle that “private” lawyers representing governmental entities are entitled to claim the same qualified immunity provided “government” lawyers from 42 U.S.C. Section 1983 claims when they are acting “under color of state law.”
Uniform State Laws
Title for Vessels. Approves the Uniform Certificate of Title for Vessels Act, promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL) in 2011, relating to titles for boats and other vessels used principally on the waters of the states.
Electronic Legal Material. Approves the Uniform Electronic Legal Materials Act, promulgated by NCCUSL in 2011, addressing the need to manage electronic legal information in a manner that guarantees the trustworthiness of and continuing access to important state legal material.