The House of Delegates was the scene of intense debate Feb. 8 as the delegates considered and approved a range of resolutions, including ones addressing delivery of legal services by non-lawyers, use of a uniform bar exam, and support for video recording of Supreme Court arguments.
The most heated debate centered around a proposed resolution from the Commission on the Future of Legal Services that lays out a framework for regulating the provision of legal services, including services provide by non-traditional legal service providers. The commission explained that given that state supreme courts in the United States are beginning to consider the adoption of regulatory objectives in this area and that providers of legal assistance other than lawyers are already actively serving the American public, it is especially timely and important for the ABA to offer guidance in this area. The commission also explained that the regulatory objectives are different form the legal profession’s core values and serve different functions.
The ABA Model Regulatory Objectives for the Provision of Legal Services, were approved after an amendment was added ensuring that nothing in the objectives abrogates in any manner existing policy prohibiting non-lawyer ownership of law firms or the core values adopted by the House of Delegates.
Also prompting debate was a resolution urging bar admission authorities in each state and territory to expeditiously adopt the Uniform Bar Examination (UBE), which is currently offered in 17 states and allows those taking the exam to transport their scores across state lines. A second resolution urges bar admission authorities to consider the impact of the UBE on minority applicants and include subjects, such as Indian law, that are important in their jurisdictions. Both of these resolutions were adopted without revision.
Legislative resolutions included support for legislation to allow video recording of Supreme Court proceedings, modernize the Administrative Procedure Act, improve Medicare and Medicaid billing, and amend intellectual property laws regarding payment of government attorney fees and availability of damages for patent infringement.
The delegates also adopted resolutions to enhance diversity in continuing legal education and on the boards of public companies.
In her speech to the delegates, ABA President Paulette Brown gave an update on her presidential year, highlighting pro bono efforts through the ABA Day of Service, noting improved services to ABA members, spotlighting diversity in the legal profession, and unveiling a short video focusing on implicit bias among judges.
During the meeting, the Nominating Committee announced a diverse slate of women nominees for upcoming association leadership positions: Miami lawyer Hilarie Bass, president-elect; Deborah Enix-Ross, chair, House of Delegates; Mary L. Smith, secretary; and Michelle A. Behnke, treasurer.
In addition, the Board of Governors reaffirmed the ABA legislative and governmental priorities for the 114th Congress.
Other highlights of the meeting were numerous panel discussions delving into topics such as the school-to-prison pipeline, social media and human trafficking, a public health approach to gun violence, and the impact of stand-your-ground laws. Programs also included a convocation on preventing conflict between police and communities of color, an opportunity to visit the California-Mexico border and an immigrant detention facility; and a tour of a services provider for homeless veterans.
The following is a summary of new policies adopted by the delegates.
Administrative Procedure Act (APA). Urges Congress to amend the APA rulemaking provisions to modernize the act to help enhance public participation in the rulemaking process and to provide clearer direction to federal agencies.
Alternative Dispute Resolution
Health Care Disputes. Urges lawyers and all interested parties to encourage the informed and voluntary use of alternative dispute resolution (ADR) processes as an effective, efficient and appropriate means to resolve health care disputes. Opposes the use of binding forms of ADR involving patients in medical malpractice disputes, disputes with private managed health care organizations, or involving residents in disputes with long-term care facilities or similar health care institutions, unless the parties agree to do so voluntarily and knowingly after the dispute arises.
Emotional and Behavioral Disorders. Urges that state, local, territorial and tribal child welfare and juvenile justice agencies develop comprehensive policies and that state courts improve oversight for the administration of psychotropic medications for children in their custody; recommends that attorneys and judges become better educated on this subject; and urges Congress to enact legislation to require data collection from states to learn about progress that is being made.
Reproductive Technology. Adopts the ABA Model Act Governing Assisted Reproductive Technology Agencies (ART), which provides model licensing legislation governing ART agencies, and recommends consideration and adoption of the Model Act by appropriate government agencies and legislatures.
Surrogacy. Urges the U.S. State Department to seek − in negotiations concerning a possible Hague Convention on private international law concerning children – recognition of the clear distinctions between adoption and surrogacy and allow individual member counties to regulate surrogacy as deemed appropriate by those countries without imposing new international restrictions on surrogacy arrangements.
Equal Rights Amendment (ERA). Supports constitutional equality for women and urges the extension of legal rights, privileges and responsibilities to persons, regardless of sex; reaffirms support for ratification of the ERA; and calls on all bar associations to support and take up the pursuit of ERA ratification.
Prisoner Emails. Urges the Department of Justice and the Federal Bureau of Prisons to amend their policies with respect to monitoring emails between attorneys and their incarcerated clients to permit attorneys and clients to communicate confidentially via email and thereby maintain the attorney–client privilege. This would provide those emails with the same confidentiality protections as traditional letter mail.
Sexual Conduct. Urges legislatures to review all statutes criminalizing consensual noncommercial sexual conduct, in private and between persons who have the legal capacity to consent, and to repeal or amend such statutes to ensure that such conduct is not made criminal. Urges legislatures to repeal or amend any statutes, regulations or policies that denigrate persons who engaged in constitutionally protected sexual conduct.
Supreme Court Video Recording. Urges the U.S. Supreme Court to record and make available video recordings of its oral arguments to allow citizens to access and better understand the process through which the court arrives at its decisions.
Continuing Legal Education (CLE). Encourages all state, territorial and tribal courts, bar associations and other licensing and regulatory authorities that have mandatory or minimum CLE requirements (MCLE) to modify their rules to include, as a separate credit, programs regarding diversity and inclusion for the legal profession of all persons regardless of race, ethnicity, gender, sexual orientation, gender identity or disabilities, and programs regarding the elimination of bias. Resolves that the ABA will assist in the development and creation of diversity and inclusion CLE programs to ensure attorneys can meet their MCLE requirements.
Boards. Urges public companies in the United States to diversify their boards to more closely reflect the diversity of society and the workforce of the United States and to include board composition in public disclosure materials.
Advanced Practice Providers. Urges Congress to enact legislation and the Centers for Medicare and Medicaid Services to implement regulations and guidance permitting the locum tenens (temporary) services delivered by advanced practice providers during staffing shortages to be billed in a manner commensurate with the locum tenens services furnished by physicians.
Intellectual Property Law
Attorney Fees. Opposes intellectual property laws and agency and court interpretations of intellectual property laws that impose the payment of the government’s attorney fees on a party challenging a decision of the U.S. Patent and Trademark Office in federal district court, unless the statute in question explicitly directs the courts to award attorney fees. Supports an interpretation or a statutory clarification of 15 USC § 1071(b)(3) and 35 USC § 145 that the term “expenses” as provided for in those sections does not include government attorney fees.
Patent Infringement. Supports interpretation and application of the statutory six-year patent damages period (35 USC § 286) as limiting availability of the judicially created laches defense as a bar to legal damages for patent infringement, and as not limiting availability of laches as a defense where equitable relief, such as injunctive relief and ongoing royalties, is sought.
In-House Counsel. Amends the black letter of Rule 5.5 of the ABA Model Rules of Professional Conduct and the ABA Model Rule for Registration of In-House Counsel to include language specifying that the court of highest appellate jurisdiction may, in its discretion, allow foreign in-house lawyers who do not meet the ABA definition of foreign lawyer because they cannot be “members of the bar” to be able to practice as in-house counsel in the United States and to be so registered.
Uniform Bar Examination (UBE). Urges the bar admission authorities in each state and territory to expeditiously adopt the UBE in their respective jurisdictions.
UBE Impact on Minorities. Urges bar admission authorities to consider the impact on minority applicants in deciding whether to adopt the UBE in their jurisdictions and to consider including subjects not part of the UBE, particularly Indian law in each state or territory with sizable American Indian populations or trust lands.
Regulatory Objectives. Adopts the ABA Model Regulatory Objectives for the Provision of Legal Services and urges that each state’s highest court, and those of each territory and tribe, be guided by the Model Regulatory Objectives when they assess the court’s existing regulatory framework and any other regulations they may choose to develop concerning non-traditional legal service providers.
Uniform State Laws
The House of Delegates approved resolutions adopting the following six uniform state laws promulgated by the National Conference of Commissioners on Uniform State Laws: Revised Uniform Athlete Agents Act; Revised Uniform Residential Landlord and Tenant Act; Uniform Commercial Real Estate Receivership Act; Uniform Recognition and enforcement of Canadian Domestic-violence Protection Orders Act; Uniform Home Foreclosures Act; and Uniform Trust Decanting Act.