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March 01, 2012

Washington News Briefs

STOCK ACT: The proposed Stop Trading on Congressional Knowledge of 2012 (STOCK Act) has stalled in Congress over a provision in the Senate version that would have significant unintended adverse consequences for business lawyers. Last month, the Senate and House easily passed separate versions of the legislation, S. 2038, to prevent members of Congress and congressional employees from using for their personal benefit nonpublic information derived from their official positions for insider trading. Section 17 of the Senate bill, however, would amend the Lobbying Disclosure Act of 1995 to bring “political intelligence activities” within the act’s scope and to regulate “political intelligence consultants” who engage in these activities. In a March 2 letter to House and Senate leaders, ABA Business Law Section Chair Linda J. Rusch expressed opposition to Section 17 and noted that the ABA Task Force on Financial Markets Regulatory Reform supports the section’s position. According to Rusch, the term “political intelligence activities” in Section 17 is overly broad and would encompass activities that involve only an indirect relationship to political intelligence gathering and no relationship at all to lobbying. She explained 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 those government officials to seek clarification and guidance with respect to the application of rules and regulations to particular fact situations. Section 17, she said, would require a person to register as a “political intelligence consultant” as a result of any “political intelligence contact,” which could consist of only a single telephone call, a single email or letter, or attending a single meeting on behalf of a client. “Not only would this registration impose a significant burden on business lawyers, it may also materially undermine some of the core principles associated with the professional conduct of lawyers, including lawyers’ ethical obligations to maintain client confidences and represent clients zealously within the bounds of the law,” she wrote. She urged Congress not to include Section 17 in the final version of the bill.


CAMERAS IN THE COURTS: The Senate Judiciary Committee approved a bill Feb. 9 that would direct the Supreme Court to allow television coverage of all open sessions unless the court decides by a majority vote that doing so would constitute a violation of the due process rights of one or more of the parties involved in the case pending before the court. S. 1945, approved by a party-line 11-7 vote, was introduced by Sens. Richard Durbin (D-Ill.) and Charles E. Grassley (R-Iowa). During the markup of the bill, Durbin emphasized, “In a democratic society that values transparency and participation, there is just no justification for such a powerful element of government to operate largely outside the view of the American people.” Supreme Court justices, however, have been reluctant to allow televising of their sessions. Since 1996, the Judicial Conference has authorized each court of appeals to determine the circumstances in which cameras may be permitted in their courts in civil cases, and the conference is conducting a three-year pilot project to evaluate the effect of cameras in federal district courts and the public release of digital video recordings of some civil proceedings. The ABA supports further experimentation with cameras in the courts, including the Supreme Court, under guidelines promulgated by the Judicial Conference. S. 1945 has been placed on the Senate calendar. There has been no action on H.R. 3572, the companion bill introduced in the House by Rep. Gerald E. Connolly (D-Va.).


PARENTAL REPRESENTATION: The ABA is supporting a bill introduced last month by Rep Gwen Moore (D-Wis.) that seeks to improve the quality of representation for parents and guardians in child welfare cases in state courts. H.R. 3873, the Enhancing the Quality of Parental Representation Act of 2012, would strengthen the Court Improvement Program (CIP), originally enacted in 1993 to provide federal funds to state courts and child welfare agencies for programs to improve the quality, depth and timeliness of child welfare court proceedings. The bill would allow state courts to focus on improving legal representation for parents by devoting a modest stream of CIP funding to that critical area. ABA Governmental Affairs Director Thomas M. Susman emphasized in a Feb. 16 letter to Moore that data from organizations that provide representation for parents demonstrate that investing in high-quality counsel results in improved outcomes for children that include increased family reunifications, fewer reunification failures and case re-filings, continuance reductions, improved case participation by parents, and better access to services. Enactment of the bill, he said, would result in more state courts being equipped to evaluate their current systems of providing parent representation and implementing appropriate reforms, establish standards of practice for attorneys representing parents, fund law school clinics to provide high-quality representation, and improve the training and mentoring opportunities available to parents’ attorneys.

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