April 30, 2012

Inside Business Law

Recognizing the Efforts of the ABA and BLS Leaders to Preserve the Independence of the Legal Profession

Over the past several years, the ABA has fought vigorously to preserve the independence of the legal profession by successfully blocking or modifying numerous key legislative and regulatory proposals that would have undermined traditional state court regulation of lawyers, interfered with the confidential client-lawyer relationship, or otherwise imposed excessive regulations on lawyers engaged in the practice of law. The Business Law Section has been a vital part of this overall ABA effort, with our business lawyers leading the way in numerous key areas, including:

  • Martin Lybecker (Chair-Elect of the ABA Business Law Section and a member of the ABA Task Force on Financial Markets Regulatory Reform) and other Task Force members played a leading role in crafting a new ABA policy opposing provisions in the Dodd-Frank Act that would have granted the Consumer Financial Protection Bureau sweeping new powers to regulate practicing lawyers and their law firms. Marty also joined the ABA Governmental Affairs Office (GAO) in helping persuade key congressional leaders to include a strong practice-of-law exclusion in the final version of the Dodd-Frank Act. This exclusion effectively exempts practicing lawyers and their employees from the expanded regulatory powers of the new Consumer Financial Protection Bureau created by the legislation.
  • Terry Franzen, Chair of the ABA Business Law Section's Consumer Financial Services Committee, worked with the GAO to craft detailed comments forwarded to the FTC, urging the Commission to include a broad practice of law exemption in the final "Mortgage Assistance Relief Services" Rule. The exemption spares the vast majority of practicing lawyers who help consumer clients to renegotiate their mortgages or avoid foreclosure from all of the burdensome federal regulations in the rule.
  • Donald Lampe of the ABA Business Law Section Council and Andrew Smith of the Section provided valuable assistance to the GAO that eventually led to the enactment of P.L. 111-319, effectively exempting practicing lawyers from the FTC's Red Flags Rule that requires "creditors" to develop costly programs identifying, detecting, and responding to the warning signs of identity theft.
  • William H. Clark, Jr., Chair of the ABA Business Law Section's Anti-Money Laundering and Anti-Terrorism Initiatives Committee, Martin Lybecker, and other members of the ABA Task Force on Gatekeeper Regulation and the Profession, helped to develop several new ABA policies opposing federal anti-money laundering legislation or regulations that would undermine the attorney-client privilege or the confidential lawyer-client relationship. They also helped to develop the "Voluntary Good Practices Guidance for Lawyers to Detect and Combat Money Laundering and Terrorist Financing" and to disseminate the Guidance to state bars, state courts, and the legal community in general.

Small and Midsize Companies Securities Law Update

Recent federal securities law initiatives promise to greatly simplify the raising of capital for small and midsize companies. The Business Law Section has been a national leader in both promulgating and analyzing such initiatives, with our contributions paying off in the form of President Obama's recent approval of the Jumpstart Our Business Startups Act (the JOBS Act). Securities law reforms for small and midsize companies were understandably a hot topic at the Business Law Section's Spring Meeting held this past March, and while the Spring Meeting occurred prior to the president's approval of the JOBS Act, you won't want to miss the meeting's informative presentations and articles covering these emerging issues,.

Ethical Issues in Negotiating and Drafting Business Contracts

Good transactional lawyers always strive to negotiate and draft contracts that best achieve client goals, but what happens when ethical considerations conflict with achieving those goals? This is an issue most busy transactional lawyers will inevitably face, and the Business Law Education Committee provides us with an invaluable opportunity to learn how to deal with such issues in this hypothetical-based presentation from the Business Law Section's 2012 Spring Meeting.

Annual Reviews of Legal and Business Developments

One of the most important functions of the Business Law Section is to track current legal and business developments that directly impact the day-to-day practice of the business lawyer, and to compile those developments in the form of annual reviews. Many of these reviews are published in connection with the Business Law Section's annual Spring Meeting, and 2012 is no exception. You will want to print these important reviews and keep them near your desk for ready reference:

  • The LLCs, Partnerships and Unincorporated Entities Committee released its 2012 edition of "The 2012 Annual Review of LLC Case Law and Recent Developments." This document is an essential compendium of current case law in this dynamic field.
  • "The 2012 Annual Review of Developments in Business and Corporate Litigation" from the Business and Corporate Litigation Committee provides comprehensive case law analyses in functional areas including director and officer liability insurance, corporate law, business torts, class action law, and employment law, as well as a multi-state review of recent developments in the use of business courts.
  • The Business Financing Committee published its "30th Annual Review of Developments in Business Financing", with a strong focus on how market and regulatory conditions have influenced IPOs, private equity financings and venture capital investments over the past year.