August 01, 2016

ABA House of Delegates approves wide range of new association policies

The 589-member ABA House of Delegates, gathering Aug. 8-9 during the association’s Annual Meeting in San Francisco, approved an array of new policies on topics including transparency in the federal regulatory process diversity in the legal profession, legal ethics, and non-discrimination in the selection of juries.

In addition to the House of Delegates action, the meeting featured numerous panel discussions and CLE showcase programs, the awarding of the ABA Medal to ABA Past President Dennis W. Archer, and a plenary session featuring FBI Director James Comey, who talked about the balance between national security and law enforcement.

Also highlighting the meeting was the passing of the gavel from 2015-16 ABA President Paulette Brown to incoming ABA President Linda A. Klein of Atlanta. Miami attorney Hilarie Bass will serve as president-elect for the coming year before assuming the presidency in August 2017. In addition, Deborah Enix-Ross, of New York, began her two-year term as chair of the House of Delegates. 

Here is a summary of major new policies adopted by the delegates.

Administrative Law

Regulations. Supports legislation to require federal agencies to provide an online source where material that has been incorporated by reference into proposed or final regulations can be accessed without charge.

Discrimination

Jury Service. Amends Principles 2(B) and 6(C) of the ABA Principles for Juries and Jury Trials to include marital status, gender identity and gender expression to the list of factors that may not be used to deny jury service, and to recommend that the court educate jurors on implicit bias and how to avoid such bias in the decision making process.

Courts/Judiciary

Diversity. Urges the president of the United States and appropriate parties to recognize the importance of racial, ethnic, disability, sexual orientation, gender identity and gender diversity in the selection process for U.S. circuit, district, bankruptcy and magistrate judges, and other qualified employees in the judicial branch, and to employ strategies to expand the diversity of the pool of qualified applicants, nominees and appointees, as well as the use of diverse merit selection panels.

Access to Civil Justice. Urges jurisdictions to adopt court rules or legislation authorizing the award of class action residual funds to non-profit organizations that improve access to civil justice for persons living in poverty, after reasonable efforts are made to fully compensate all members of the class.

Criminal Justice

Mental Health. Adopts the black letter of the ABA Standards for Criminal Justice: Mental Health Standards to reflect dramatic developments in the areas of legal ethics, criminal law and mental health since the previous standards were adopted 30 years ago.

Miranda Rights. Urges federal, state, local and territorial law enforcement authorities to provide a culturally substantive and accurate translation of the Miranda warning in Spanish.

Probation. Urges state, local, territorial and tribal legislatures to end the current system of privatized probation by abolishing “offender funded” systems of probation supervised by private, for-profit companies.

School-to-Prison Pipeline. Urges all federal, state, territorial and local legislative bodies and government agencies to eliminate the school-to-prison pipeline, in which students of color, students with disabilities, LGBTQ (lesbian, gay, bisexual, transgender and queer) students, homeless students, and other marginalized youth constituencies are disproportionately impacted by systemic inequities in education and overdiscipline resulting in disparate school drop-out or “push-out” rates and interactions with the juvenile justice or prison systems.

Election Law

Counting Votes. Urges state and territorial election administrators and officials to ensure that state-wide and territorial-wide ballot counting guidance is in place as soon as practicable. This includes clear criteria for determining what constitutes a valid vote when a hand count is required of paper and optical scan ballots.

Intellectual Property Law

Likelihood of Confusion. Supports the treatment in federal trademark law of the likelihood-of-confusion standard for infringement as a question of fact in line with the Supreme Court 2015 decision in Hana Fin Inc. v. Hana Bank, which ruled that the jury, rather than a court, determines how an ordinary person or community would make an assessment to resolve fact-intensive questions.

Trademark Registration. Supports an interpretation of the federal Lanham Act concerning three propositions of trademark law: a determination that a mark is ineligible for registration on the U.S. Patent and Trademark Office’s Principal Register does not necessarily render that mark invalid and unprotectable; such a determination does not restrict the mark owner’s right to use the mark in commerce; and the owner of a mark registered on the Principal Register enjoys certain substantive and procedural advantages in litigation to protect its mark that are not available to the owners of unregistered marks.

Patent Venue. Supports statutory construction of the special patent venue statute, 28 U.S.C. §1400(b), that does not look to the separate general venue statute, 28 U.S.C. §1391(c), to ascertain the meaning of the term “resides,” and puts an end to improper forum shopping in patent cases by limiting venue for a corporate defendant to either where it resides or where it has committed acts of infringement and has a regular and established place of business.

International Law

Turkey. Opposes any state’s detention of individuals without charge or access to counsel and calls on the government of the Republic of Turkey to immediately release each detained judge, lawyer, prosecutor, journalist and any other individual unless there is evidence establishing reasonable grounds to believe the individual has committed a crime. Calls upon the government of the Republic of Turkey to provide a fair hearing before an impartial tribunal applying established legal principles before suspending or dismissing any lawyer or judge from the bar or a tribunal, and to commit to protect human rights, respect freedom of speech and of the press, and ensure that any measures taken that derogate from such obligations be only those that are strictly necessary given exigencies of the situation.

Legal Education

Approval of Law Schools. Concurs in the action of the Council of the Section of Legal Education and Admissions to the Bar in amending the ABA Standards and Rules of Procedure for Approval of Law Schools, including elimination of the interpretation that prohibited the granting of credit to a student for participation in a field placement for which the student received compensation. The amended standards include: Standard 304 (Simulation Courses, Law Clinics and Field Placements); Standard 305 (Other Academic Study); Standard 307(a) (Studies, Activities and Field Placements Outside the United States):  and Interpretation 311-1 (Academic Program and Academic Calendar).

Legal Profession

Lawyer Referral Services (LRS). Reaffirms support of lawyer referral services sponsored by state, local, territorial and tribal bar associations, and encourages those services to adhere to the standards of the ABA Model Supreme Court Rules Governing Lawyer Referral and Information Services.

Confidential Communications. Urges federal, state, territorial and tribal courts and legislative bodies to adopt rules or enact legislation to establish an evidentiary privilege for confidential communications between LRS clients and lawyer referral services that would be similar to the privilege that currently exists for confidential communications between attorneys and their clients.

Discrimination. Amends Rule 8.4 and comment of the ABA Model Rules of Professional Conduct to provide that it is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.

Diversity. Urges all providers of legal services, including law firms and corporations, to expand and create opportunities at all levels of responsibility for diverse attorneys, and urges clients to assist in the facilitation of opportunities for diverse attorneys and direct a greater percentage of legal services they purchase, both currently and in the future, to diverse attorneys.

Legal Services

Online Resources. Urges courts and other governmental entities, bar associations, non-profit organizations and entrepreneurial entities that make forms for legal services available to individuals through the Internet to provide clear and conspicuous information on how people can access a lawyer or a lawyer referral service to provide assistance with their legal matters to prevent errors or omissions.

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