Washington Chart 116th Congress

Topic

Bill/Rule

Description and Status

ABA Position

Attorney- Client Privilege

Border Searches of Electronic Devices

Section 5.2 of CBP Directive No. 3340-049A

Department of Homeland Security (DHS) standards permitted U.S. Customs and Border Protection (CBP) (Section 5.2 of CBP Directive No. 3340-049) and Immigration and Customs Enforcement (ICE) (Sections 6.1 and 8.6 of ICE Directive No. 7-6.1) officers to search and review the contents of attorneys’ laptop computers, cell phones and other electronic devices at U.S. border crossings without any showing of reasonable suspicion. These devices typically contain client information that is inherently privileged or otherwise confidential. CBP issued new standards (Section 5.2 of CBP Directive No. 3340-049A) on 1/4/18 requiring that, among other improvements, CBP officers consult with the CBP’s Associate/Assistant Chief Counsel’s Office before searching devices allegedly containing privileged or work product protected information. ICE also adopted related unpublished guidance on 5/11/18.

Supports provisions in the revised CBP and ICE policies that establish specific standards and
procedures border officers must follow before searching or seizing confidential client information contained on attorneys’ electronic devices. (Only 2017 letter available)

H.R. 2925,

S. 1606, S. 2694

H.R. 2925 and S. 1606 would prohibit government officials from accessing the digital contents of electronic devices of U.S. persons at the border without a valid warrant supported by probable cause. S. 2694 would impose strict limits on the ability of government officials to search or seize electronic devices transported by individuals at the U.S. border and would impose different restrictions on “manual searches,” “forensic searches,” and “seizures.” H.R. 2925 was referred to the House Judiciary and Homeland Security Committees, S. 1606 was referred to the Senate Judiciary Committee, and S. 2694 was referred to the Senate Homeland Security and Governmental Affairs Committee, but there was no further action on the bills.

Generally supports certain provisions in H.R. 2925, S. 1606, and S. 2694 that would effectively require border agents to obtain a warrant before searching privileged or confidential client information on attorney electronic devices or before conducting forensic searches or certain types of seizures of electronic devices carried by travelers crossing the U.S. border. (Only 2017 letter available)

CFPB Disclosure of Confidential and Privileged Information

Final Rule that clarified its ability to disclose confidential and privileged information to certain agencies

The Consumer Financial Protection Bureau (CFPB) published a proposed rule on disclosure of records and information on 8/24/16 that would greatly expand the Bureau’s discretion to disclose confidential and privileged information it receives from supervised or regulated entities to many other federal, state, and foreign agencies and other entities. The proposed rule (It) would also prohibit those lawfully in possession of confidential investigative information from disclosing it to others without the CFPB’s written consent. On 10/29/20, the CFPB issued its final rule that clarified its ability to disclose confidential and privileged information to certain agencies but did not include several provisions that would have broadly expanded its discretion to disclose such information to many other agencies and entities and thus undermined attorney-client privilege and work product protections. The final rule also included language stating that persons lawfully in possession of confidential investigative information are not prohibited from disclosing it to others.

Supports the preservation of the attorney-client privilege and work product doctrine; Opposes the CFPB disclosing privileged information received from supervised and regulated entities to any other agency or entity not covered by the statutory privilege waiver provisions in 12 U.S.C. §§ 1828(x) and 1821(t).

Bankruptcy Law

Harmonization of Bankruptcy and Asset Forfeiture Laws

H.R. 2835 and S. 4861

H.R. 2835 and S. 4861 would provide key protections to innocent persons whose property is seized under federal civil asset forfeiture laws, including specific notice requirements, representation rights, and a higher burden-of-proof standard. The bills also include provisions to harmonize certain aspects of the federal forfeiture and bankruptcy laws by requiring the creation of two federal databases to help owners, creditors, lienholders and others with an interest in seized property to better protect their rights in any parallel civil forfeiture and bankruptcy proceedings. H.R. 2835 was referred to the House Judiciary, Financial Services, and Energy and Commerce Committees, and S. 4861 was referred to the Senate Judiciary Committee, but there was no further action on either bill.

Supports.

Children/Families

Foster Care System

Comments to commend the Department of Health and Human Services decision to retain three of the four education data elements from the 2016 final rule.

COVID-19

Hospital and Critical Access Hospital Notice of Advance Directive Policy Waiver

Supports efforts of the Department of Health and Human Services (HHS) to expand access to needed services through alternatives such as telehealth. However, the ABA does not support the recent waiver by the Centers for Medicare and Medicaid Services (CMS)

Child Welfare

Updated Child Welfare Policy

Supports updating the Child Welfare Policy Manual Section 8.1 consistent with federal law

Court Improvement Programs

Emergency Supplemental Funding for Court Improvement Programs

Support for emergency supplemental funding in the next stimulus bill to ensure that the child welfare system has the tools it needs to prevent or address child maltreatment caused or made worse by the COVID-19 pandemic.

Civil Rights/Constitutional Law

Discrimination

Equality Act of 2019 (H.R. 5)

Removing Barriers to Native American Voting Rights (H.R. 1694)

HUD Proposed Rule Making Admission or Placement Determinations Based on Sex in Facilities Under Community Planning and Development Housing Programs (RIN: HUD-2020-0047, Docket No. F R-6152-P-01, 85 Federal Register 44811)

Department of Labor Office of Federal Contract Compliance; Programs Proposed Rule Implementing Legal Requirements; Regarding the Equal Opportunity Clause’s Religious Exemption (RIN 1250-AA09, 84 Fed. Reg. 41677)

Opposes the Proposed Rule and respectfully urges that it be rescinded.

Opposes the Proposed Rule on implementing legal requirements regarding the Equal Opportunity Clause’s Religious Exemption.

The Fairness for Breastfeeding Mothers Act of 2019 (S. 528; H.R. 866) – Letter to Senator Daines, Letter to Environmental & Public Works Committee

Paycheck Fairness Act (H.R. 7)

Protecting Tribal Communities from the effects of a government shutdown (H.R. 1135; H.R. 1128)

Supports the Fairness for Breastfeeding Mothers Act of 2019.

Opposes any weakening amendments that may be offered on the floor

Supports two bipartisan bills that would assist in protecting tribal communities from the effects of a government shutdown by authorizing advance appropriations funding for essential Indian programs.

Courts/Judiciary

Criminal Law

Elder Law

Election Law

Federal Agency Regulation of Lawyers

Health Law

Immigration Law

Intellectual Property Law

International Law

Legal Research

Legal Services

Tax Law

Veterans

Nursing Home Arbitration

Election Reform

Election Security

Voting Rights Act

Election Administration

CFPB Debt Collection

Persuader Rule

Gatekeeper Regulations on Attorneys

Asylum

Border Protections

Deferred Action for Childhood Arrivals

Unaccompanied Immigrant Children

Detention

Immigration Court/Judges

Travel Ban

Detention of Lawyers and Journalists

Independence of the Judiciary

Right to Legal Representation

Government Mistreatment of Citizens

International Criminal Court

UN Basic Principles on the Role of Lawyers

U.S. Membership in the WHO

International Criminal Justice Day

International Women’s Day

Legal Services Corporation

Disaster Legal Services Program

IRS Funding

Homeless Veterans

Electronic Court Records Reform Act (H.R. 1164; S. 2064)

Legislation Regarding Security for Supreme Court Justices (S. 2511)

Public Audio Access to Oral Arguments in the Supreme Court

Administrative Enforcement and Adjudication Reforms (OMB Request for Information on Improving and Reforming Regulatory Enforcement and Adjudication; Docket No. OMB–2019–0006; 85 Fed. Reg. 5483) – GAO Comments; Judicial Division Comments · Government lawyer participation in the activities of the ABA and other legal professional associations (18 U.S.C. § 205)

 Tool Department of Justice releases PATTERN Risk and Needs Assessment for prisoners as was required under the First Step Act.  

Restoring Education and Learning (“REAL”) Act repeals a long-standing prohibition on prisoner eligibility for Pell Grants for education. Enacted as part of P.L 116-260. 

Proposed Amendments to Optional Form 306 Concerning Prior Participation in Diversionary Programs

Technical Corrections Bill for the Elderly corrects the language in the First Step Act, which inadvertently prevented elderly prisoners from counting “good time” credit when calculating when they would become eligible for transfer to home detention. 

Offender Home Detention Pilot Program

Effective Assistance of Counsel extends the attorney-client privilege to emails between prisoners and their lawyers. Bill passed the House of Representatives.

H.R. 2868, the Ensuring Quality Access to Legal (EQUAL) Defense Act A28 is an omnibus package to support indigent defense services among other things.

H.R. 6414, the Correctional Facility Emergency Response Act of 2020 ensures that correctional staff and prisoners had safe living and work conditions during the global COVID pandemic. 

H.R. 5326, H.R. 5216, and S. 2943 would invalidate all mandatory pre-dispute arbitration agreements between nursing facilities or home health care services and their patients. All three bills would effectively override the final rule published by the Centers for Medicare and Medicaid (CMS) on 7/18/19 that reversed CMS’ previous 10/16 rule banning pre-dispute nursing home arbitration agreements that had been blocked from taking effect by a U.S. District Court in Mississippi in 11/16. In addition to permitting such arbitration agreements in general, the current CMS rule also established numerous key patient protections, including prohibiting nursing homes from requiring any resident to sign a pre-dispute arbitration agreement as a condition for admission to, or as a requirement to continue to receive care at, the facility. H.R. 5326 and H.R. 5216 were referred to the House Energy & Commerce and Ways & Means Committees, and S. 2943 was referred to the Senate Finance Committee, but there was no further action on any of the bills.

SSA Rep Payee

Stamp Out Elder Abuse

Law Aging Advance Directives

The Consumer Financial Protection Bureau (CFPB) published a proposed debt collection practices rule on 5/21/19 that included a “safe harbor for meaningful attorney involvement” to shield creditor attorneys from liability under Section 807(3) of the Fair Debt Collection Practices Act if they prove that they followed certain special due diligence requirements before filing a lawsuit or motion with the court. However, those special requirements differ from the standard requirements in Federal Rule of Civil Procedure 11(b) applicable to all other types of litigation attorneys in federal court, and proving the safe harbor defense could require creditor attorneys to disclose confidential client information and work product. On 10/30/20, the CFPB issued its final debt collection practices rule without the controversial safe harbor proposal.

H.R. 2474 and S. 1306 would amend the federal labor laws in many ways, including (by)  codifying the Labor Department’s 2016 rule that would substantially narrow the longstanding “advice” exemption to the “persuader” rule under Section 203(c) of the Labor-Management Reporting and Disclosure Act of 1959. The 2016 rule, which was enjoined from taking effect by a U.S. District Court in 2016 and then rescinded by a subsequent Labor Department final rule issued in 7/18, would require many labor attorneys and law firms representing employers to report confidential client information to the government in violation of the attorney’s ethical duty to protect client confidentiality under Rule 1.6 of the ABA Model Rules of Professional Conduct and similar binding state rules. The House passed H.R. 2474 on 2/6/20, but the Senate took no action on that bill or on S. 1306.

The Corporate Transparency Act (H.R. 2513 and S. 1978), the ILLICIT CASH Act (S. 2563), and the TITLE Act (S. 1889) would require small businesses or their attorneys to submit detailed information about the businesses’ beneficial owners to the Treasury Department’s Financial Crimes Enforcement Network (FinCEN) or to the states and require FinCEN or the states to disclose the information to other government agencies and financial institutions upon request. S. 1889 would also subject many attorneys and law firms to the anti-money laundering and suspicious activity reporting requirements of the Bank Secrecy Act when they help clients establish companies. The House passed H.R. 2513 on 10/22/19 and passed H.R. 6395, the National Defense Authorization Act for Fiscal Year 2021, containing an amendment incorporating the text of H.R. 2513 on 7/21/20. S. 1978 and S. 2563 were referred to the Senate Banking, Housing, and Urban Affairs Committee and S. 1889 was referred to the Senate Judiciary Committee, but there was no further action on those bills. On 12/__/20, the President signed P.L. 116-__, an amended version of H.R. 6395 that does not include the text of H.R. 2513. [EDIT WHEN FINAL VERSION OF NDAA PASSES IN LATE 2020]

Stark Implementation Letter

Opioid Implementation Letter

Copyright Alternative in Small-Claims Enforcement Act of 2019

Three lawyers in Belarus are facing criminal charges related to their activities on behalf of their clients.

Shortly after the Indian Government revoked the special status of the state of Jammu and Kashmir, lawyers who support of the Kashmiri peoples’ right to self-determination were arrested and held in in “preventive” detention

Detention (and Death) of Journalists in Cameroon

The Supreme Court of Poland, which found that the court’s Polish Disciplinary Chamber and the National Council of the Judiciary are not sufficiently independent from executive and legislative authorities.

Nigeria President Buhari’s suspended Chief Justice Onnoghen during the national election period. 

Hungary created a parallel court system overseen by a politically appointed justice minister which threatens to further erode that country’s judicial independence

The Congress of Guatemala uses criminal proceedings against members of the Guatemalan Constitutional Court to resolve a dispute between the two branches of government. The dispute concerns a directive from the Constitutional Court to the Congress to review allegations of corruption in the process for selecting Supreme Court judges. The ABA Center for Human Rights has been monitoring the selection of Supreme Court magistrates in Guatemala and has documented a consistent pattern of corruption

Officials in the government are calling for not seeking legal representation when dealing with tax-related misconduct.

The government of Belarus has been intimidating citizens protesting the current election in Belarus

The People’s Republic of China introduced national security legislation in the Hong Kong Special Administrative Region (HKSAR) and arrests made under the new law. The ABA considers this legislation a violation of the independence of Hong Kong’s legislature as guaranteed by the Joint Declaration agreement signed by China when the United Kingdom returned the region to China and also the Basic Law agreement between Hong Kong and China that introduced the “One Country, Two Systems” principle.

On April 18, 2020, 15 prominent pro-democracy and rule of law advocates in Hong Kong a were arrested purportedly for taking part in peaceful but “unauthorized assemblies” in August and October of 2019. 

There are allegations of arbitrary arrests and the fast-tracking of trials without due process protections during protests against the government in Zimbabwe

On Sept. 2, the U.S. Secretary of State imposed punitive travel and economic sanctions against the International Criminal Court prosecutor and another senior ICC staff member.

In 1990, the United nations adopted its Basic Principles on the Role of Lawyers, recognizing the Basic Principles for underscoring the fundamental role of an independent, diverse and inclusive legal profession and organized bar to ensure fair adjudication for all, competent and ethical representation of clients, equal access to criminal and civil justice, and dedication to human rights. 

President Trump calls for the U.S. to sever its relationship with the World Health Organization.

International Criminal Justice Day, commemorates the anniversary of the adoption of the Rome Statute, the founding treaty of the International Criminal Court (ICC). 

Funding for the Library of Congress

P.L. 116-6 (H.J. Res. 31), consolidated fiscal year 2019 appropriations legislation signed into law on 2/15/19, included $415 million for the Legal Services Corporation (LSC). P.L. 116–93 (H.R. 1158), consolidated fiscal year 2020 appropriations legislation signed on 12/20/19, increased LSC funding to $440 million. P.L. 116-159 (H.R. 8337), fiscal year 2021 continuing appropriations legislation signed on 10/1/20, continued LSC funding at the fiscal year 2020 level through 12/11/20. The CARES Act of 2020, P.L. 116-136 (H.R. 748), signed on 3/27/20, included an additional $50 million of emergency supplemental funding for LSC to address the increased legal needs of low income Americans caused by the COVID-19 pandemic.

In response to the COVID-19 pandemic, President Trump declared a nationwide emergency on 3/13/20 pursuant to Sec. 501(b) of the Stafford Act, which authorized all states and territories to receive various types of disaster assistance under the Act, including activation of the ABA Young Lawyers Division’s Disaster Legal Services (DLS) program. The DLS program provides free confidential legal assistance to low-income disaster survivors who (cannot afford it)  have insufficient resources to secure adequate legal services. After FEMA declined to activate the DLS program to address the pandemic, the ABA president wrote to the House Transportation & Infrastructure and Senate Homeland Security & Governmental Affairs Committees on 9/8/20 seeking their assistance.

P.L. 116-6 (H.J. Res. 31), consolidated fiscal year 2019 appropriations legislation signed into law on 2/15/19, included $11.303 billion for the Internal Revenue Service (IRS). P.L. 116–93 (H.R. 1158), consolidated fiscal year 2020 appropriations legislation signed on 12/20/19, increased IRS funding to $11.511 billion. P.L. 116-159 (H.R. 8337), fiscal year 2021 continuing appropriations legislation signed on 10/1/20, continued IRS funding at the fiscal year 2020 level through 12/11/20. 

Use of Veterans Benefits Administration Technology Systems proposed regulation by the Department of Veterans Affairs would have prevented attorney support staff from digital access to client case files. 

H.R. 716, the Homeless Veterans Legal Services Act of 2019 authorizes the Secretary of Veterans Affairs to enter in private-public partnerships to deliver critically needed legal services to homeless veterans. The proposal was enacted as part of P.L. 116-315.

S. 980, the Homeless Veterans Prevention Act

Support of eliminating fees for public access to electronic court records on the PACER system.

Request for Department of Justice Guidance Regarding Participation of Government Lawyers in Legal Professional Association Activities

ABA submitted a series of critical questions about the tool, the potential for racial disparity in outcomes under it, and the lack of a needs assessment. 

ABA supports Pell Grant eligibility for prisoners and submitted a letter on April 1, 2019, supporting repeal of the federal prohibition. 

Oppose the proposed modifications to Question 0 of the OPM Optional Form 306, relating to an applicant’s participation in a pretrial intervention of diversionary program leading to the dismissal of a criminal charge.

ABA supports compassionate release. On October 8, 2019, the ABA sent a letter supporting the inclusion of “good time”

ABA supports, and sent a letter on January 7, 2020. 

ABA supports and sent a letter on February 27, 2020. 

ABA supports and sent a letter on April 7, 2020.

Opposes mandatory, binding, pre-dispute nursing home arbitration agreements, supports legislation and regulations that would invalidate such agreements, and oppose legislation and regulations that would authorize, encourage, or enforce such agreements.

Supports the courts’ primary authority to regulate and oversee attorneys engaged in the practice of law; Opposes applying special meaningful attorney involvement to creditor litigation attorneys and opposes the CFPB safe harbor proposal.

Opposes Labor Department’s 2016 rule and related provisions in H.R. 2474 and S. 1306 that would narrow the “advice” exemption to the “persuader” rule.

Opposes H.R. 2513 and provisions in H.R. 6395 containing the text of H.R. 2513, S. 1978, S. 1889, and beneficial ownership reporting provisions in S. 2563.

Supports

On October 22, 2020, President Refo sent a letter to President Lukashenka on the detaining of lawyers who are working on behalf of their clients.

On July 1, 2020, President Martinez issued a letter to the Honorable Narendra Modi, Prime Minister of India on the Imprisonment of Jamm and Jashmir High Court Bar President Mian Abdul Qayoom

On June 5, 2020, President Perry Martinez issued a statement on the reported death of Cameroon journalist Samual Ajekah Abuwe  

On June 17, 2020, CHR issued a report Cameroon: A Preliminary Report on Proceedings against Detained Journalist Paul Chouta

On December 11, 2019, President Martinez issued a statement on the independence of courts in Poland

On February 22, 2019, President Carlson issued a Statement on the Suspension of the Chief Justice of Nigeria

On January 2, 019, President Carlson issues a statement that addresses the changes to the Hungarian court system.   

On July 4, 2020, President Perry Martinez issued a statement on the Guatemala's use of criminal proceedings against members of Constitutional Court.     

On October 20, 2020, President Refo issued a letter Mexican President Lopez Obrador on the respect to the Rule of Law and the right to legal representation in Mexico in relation to tax investigations

On September 2, 2020, President Refo issued a statement on the intimidation of Belarus citizens.

On July 1, 2020, President Judy Perry Martinez issued a statement on the New national security law in Hong Kong

On May 1, 2020,

President Perry Martinez issued a Statement on the Situation in Hong Kong

On January 29, 2019, President Carlson issued a Statement on the Unrest in Zimbabwe

On September 17, 2020, President Refo issued a Statement on the Imposition of Sanctions on the International Criminal Court Staff 

On August 26, 2020, President Martinez issued a Statement marking 30th Anniversary of U.N. Basic Principles of Role of Lawyers

On August 13, 2020, President Refo issued a statement on U.S. maintaining Membership in the World Health Organization (WHO)

On July 1, 2020, President Perry Martinez issued a statement in recognition of International Criminal Justice Day

On July 16, 2019, President Carlson issued a Statement on International Criminal Justice Day 2019

On March 3, 2019 President Carlson issued a Statement on International Women's Day

Supports robust funding for LSC to increase the effectiveness and efficiency of the delivery of legal services to the poor; also supports additional emergency supplemental funding to address the COVID-19 pandemic.

Supports the DLS Program and urges FEMA to promptly activate and implement it in each requesting state and territory to help meet the legal needs of low-income Americans harmed by the COVID-19 pandemic.

Supports adequate funding for the IRS to fulfill its mission.

ABA opposes the legislation and sent a letter on April 20, 2020.

Supports and sent letters on July 17, 2019, and May 21, 2019, in favor of the bills.