The ABA House of Delegates approved more than 30 new policies during its two-day session Aug. 14-15 at the association’s Annual Meeting, which also featured a rally in support of the Legal Services Corporation (LSC), a new “CLE in the City” series held at law firms and law schools throughout the city, and hundreds of panels, lectures and roundtable discussions on current legal issues.
The LSC rally featured performances from top Broadway performers and speeches from ABA leaders, legal aid providers and clients who have benefited from the corporation, which is the largest single funder of civil legal programs in the United States. The rally called attention to the millions of low-income Americans who need legal assistance but receive little or no help and the importance of adequate funding for the corporation.
The wide range of issues covered during special programs at the meeting included immigration, attorney-client confidentiality, implicit bias in the legal profession, cyber risk management, veterans treatment courts, and judicial independence. In addition, the association celebrated the 50th anniversary of Justice Thurgood Marshall’s appointment to the U.S. Supreme Court and his legacy.
Other highlights of the meeting included the passing of the gavel to Miami lawyer Hilarie Bass, whose presidential initiatives include a longitudinal study to examine why women are leaving law practice in huge numbers. Bass succeeds Linda A. Klein of Atlanta, Georgia. Robert M. Carlson, of Montana, was elected president-elect and will serve one year in that position before assuming the presidency in August 2018.
The following is a summary of the new policies adopted by the House of Delegates during the meeting.
Housing Discrimination. Urges governments to enact legislation prohibiting discrimination in housing based on lawful sources of income, including federal vouchers, Supplemental Security Income payments, and retirement benefits.
Student Journalists. Urges all legislative bodies to enact statutes and school districts to adopt policies that rigorously protect the ability of student journalists at the secondary and postsecondary levels to make the independent editorial judgments necessary to meaningfully cover issues of social and political importance without fear of retaliation or reprisal. This is provided that such statutes also allow for reasonable restrictions on the time, place and manner of student expression, and neither authorize nor protect expression by students that is defamatory or invasive of privacy, obscene or otherwise unlawful, or reasonably anticipated to incite students to act unlawfully.
Ninth Circuit. Reaffirms opposition to restructuring the U.S. Court of Appeals for the Ninth Circuit, and supports ongoing efforts by the Ninth Circuit and other federal courts to utilize technological and procedural innovations to handle caseloads efficiently while maintaining coherent, consistent laws in their respective jurisdictions.
Courtroom Experience. Urges courts to implement plans that welcome opportunities for new lawyers to gain meaningful courtroom experience, and urges law firms and clients to take advantage of those plans.
Bias. Urges all courts to develop plans of action to make de-biasing training an important part of initial judicial training and continuing judicial education, and urges local and state bar associations to work with courts to offer de-biasing training to judicial officers free of cost and at the convenience of the courts.
Mandatory Minimums. Opposes the imposition of mandatory minimum sentences, and urges Congress and state and territorial legislatures to repeal laws requiring minimum sentences and to refrain from enacting laws punishable by mandatory sentences.
Right to Counsel. Urges Congress to enact legislation enabling the U.S. Department of Justice to initiate and pursue civil actions to obtain equitable relief for systemic violations of the constitutional right to the effective assistance of counsel, both directly and through private litigants deputized to file such actions. Urges Congress to enact legislation recognizing the right of private litigants in their individual capacity or as members of a class action to obtain equitable relief in federal court for systemic violations of their right to effective assistance of counsel.
Dual Jurisdiction Youth. Adopts the ABA Criminal Justice Standards Relating to Dual Jurisdiction Youth addressing the unique situations for juveniles caught in two court systems at the same time and providing guidance regarding best practices in these situations.
Prosecution and Defense Functions. Amends the black letter ABA Standards for Criminal Justice: Prosecution Functions, 4th Edition and ABA Standards for Defense Function, 4th Edition to make non-substantive changes to the standards to provide parallel provisions in the two sets of standards.
Bonds. Urges governments to adopt policies and procedures that, among other things, favor release of defendants upon their own recognizance or unsecured bonds, permit cash bonds or secured bonds only upon a determination by the court that such financial conditions and no other conditions will assure appearance in court, and provide that pretrial detention should never occur due solely to an inability to pay. Supports permitting a court to order a defendant to be held without bail where public safety warrants pretrial detention and no condition of pretrial release suffice; and rejects the use of “bail schedules” based only on the nature of the pending charge.
Juvenile Bail/Bond. Urges governmental entities to cease use of bail/bond in the juvenile justice system and to utilize objective criteria that do not have a discriminatory or disparate impact and that utilize the least restrictive condition of release. 112D
Solitary Confinement. Urges legislative bodies and government agencies to enacts laws and adopt policies prohibiting the use of solitary confinement against children and youth under the age of 18.
Expunging Convictions. Urges governments to enact laws allowing individuals to petition to expunge all criminal justice records pertaining to charges or arrests that did not result in a conviction.
Homelessness. Urges governments to enact laws allowing for the expungement of convictions, or other statutory ordinances or violations where a court enters a finding of guilty, for life-sustaining or nuisance crimes performed in public spaces that are associated with homelessness.
Guardianship. Urges legislatures to amend their guardianship statutes to require that supported decision-making – in which people make their own decisions with trusted individuals they choose rather than rely on a stranger − be identified and fully considered by the courts as a less restrictive alternative before guardianship is imposed.
Ombuds Programs. Encourages greater use and development of ombuds programs that comply with generally recognized standards of practice as an effective means of preventing, managing, and resolving individual and systemic conflicts and disputes.
Access to Education. Urges governments to adopt and implement laws, policies and other effective measures to provide every child with equal access to elementary and secondary public schools funded at levels adequate to ensure a high-quality education.
Civics Education. Urges governments to develop and implement age-appropriate curricula designed to instill in all students a sense of the personal responsibility to cast informed votes and to teach them how to educate themselves regarding the candidates and issues in elections.
Youth at Risk. Endorses the Blueprint for Change: Education Success for Children in Foster Care (2007) and the Blueprint for Change: Education Success for Youth in the Juvenile Justice System (2016); urges attorneys, judges and bar associations to improve legal advocacy in juvenile court and education matters; and calls for legislators and policymakers to create policies and practices that ensure educational rights.
Restraining Orders. Urges governments to enact statutes, rules or regulations authorizing courts to issue gun violence restraining orders, including ex parte orders, that include certain specified provisions.
Counsel. Supports the appointment of counsel at federal government expense to represent all indigent persons in removal proceedings before the Executive Office for Immigration Review (in immigration courts and before the Board of Immigration Appeals), and if necessary to advise such individuals of their right to appeal to the federal circuit courts of appeals.
Enforcement. Urges Congress to amend Section 287 of the Immigration and Nationality Act to expand and codify Department of Homeland Security guidelines regarding immigration enforcement actions to include courthouses as “sensitive locations” in which immigration enforcement actions may only be taken upon a showing of exigent circumstances and with prior approval of a designated supervisory official.
Trademark Infringement. Supports an interpretation of Section 35(a) of the Lanham Act that proof of willfulness is not required, but may be taken into account as among the equitable considerations, for a prevailing plaintiff to recover a defendant’s profits in actions involving trade infringement, unfair competition, or cyber-piracy under the statute.
Previously Issued Patents. Supports, in a post-issuance proceeding at the U.S. Patent and Trademark Office in which a previously issued patent is challenged by a petitioner, applying the statutory requirement that the petitioner asserting the unpatentability of a patent “shall have the burden of proving unpatentability by a preponderance of the evidence” on both the challenged claims and any amendment of the claims proposed by the patent owner during the proceeding. This is provided that the patent owner has the initial burden of production (burden of going forward) on the patentability of any proposed amended claims.
Lead Paint. Urges national governments worldwide to adopt laws to phase out the manufacture, import and sale of lead paint; supports efforts to promote the phase-out of lead paint by no later than 2020; and urges the legal profession and other organizations to support adoption of laws to phase out and eliminate lead paint through pro bono support, educational initiatives and other appropriate measures.
Global Criminal Justice. Urges the U.S. Department of State to preserve the Office of Global Criminal Justice and role of the war crimes ambassador, including funding and staffing to continue the work of the office and the United States’ commitment to international criminal justice and the prevention and prosecution of atrocity crimes.
Legal Education/Bar Admission
Bar Admission. Supports the principle that bar admission should not be denied based solely on immigration status and urges Congress to amend 8 U.S.C. §1621(d) to vest state courts with authorization to permit undocumented alien to obtain professional licenses to practice law in their jurisdictions.
Misappropriation of Funds. Amends the black letter for Rule 7 (Roster of Lawyers) of the ABA Model Rules for Lawyer Disciplinary Enforcement (MRLDE) to minimize instances of lawyer misappropriation of monies held in trust accounts and hold lawyers accountable when appropriate.
Trap-Neuter-Vaccinate-Return. Urges legislative bodies and governmental agencies to interpret existing laws and policies and to adopt laws and policies that allow implementation and administration of trap-neuter-vaccinate-return programs for free-roaming cats (“community”) cats within their jurisdictions in order to promote effective, efficient and humane management of the cats.
Attorney-client Privilege. Supports common-interest doctrine, under which sharing of privileged communications with persons of common interest who have agreed to maintain confidentiality does not waive privilege.
Discharge Status. Recommends review and improvement of the processes by which military records are corrected, discharge status petitions are considered, and the character of one’s discharge is reviewed to ensure that veterans receive the full range of benefits to which they are entitled.