October 03, 2016

House of Delegates Select Committee Report - Toronto Annual Meeting (2011)

 

MEMORANDUM

 

TO:                 Members of the Section of Litigation

FROM:           Section of Litigation Delegates to the House of Delegates
                                    Kim J. Askew
                                    JoAnne A. Epps
                                    Lawrence J. Fox
                                    David C. Weiner

SUBJECT:   2011 Annual Meeting of the American Bar Association and Meeting of the House of Delegates

DATE:            September 2, 2011

____________________________________________________

REPORT ON THE ABA ANNUAL MEETING

The 133rd Annual Meeting of the American Bar Association (the “ABA”) was held August 4-9, 2011, at the Fairmont Royal York Hotel/Metro Toronto Convention Center in Toronto, Canada.  Wide varieties of programs were sponsored by committees, sections, divisions, and affiliated organizations.  The House of Delegates met for a one and a half day session. 

The Nominating Committee also met and sponsored a “Meet the Candidates” Forum on Sunday, August 7, 2011.  The following candidates seeking nomination at the 2012 Midyear Meeting gave speeches to the Nominating Committee and to the members of the Association present:  Robert M. Carlson of Montana, candidate for Chair of the House of Delegates; and James R. Silkenat of New York, candidate for President-Elect of the Association.

THE HOUSE OF DELEGATES

The House of Delegates of the American Bar Association (the “House”) met on Monday, August 8, and Tuesday, August 9, 2011.  Linda A. Klein of Georgia presided as Chair of the House.  

The invocation for the House was delivered by Timothy B. Walker of Colorado, Section of Family Law Delegate.  The Unites States and Canadian National Anthems were sung by four Canadian “singing lawyers” who are each lead singers in different bands.  Their lawyer bands raise money annually for charities, including AIDSbeat, an annual rock n’ roll charity bash organized by Toronto’s legal community.

The Chair of the House Committee on Credentials and Admissions, Laura V. Farber of California, welcomed the new members of the House and moved that the signed roster be approved as the permanent roster for this meeting of the House. The motion was approved.  Ms. Farber also reported on the Committee’s completion of the 2010 five-year review of membership figures, noting that two state bar associations will gain a delegate, one state bar association will lose a delegate, seven local bar associations each will lose a delegate, and two local bar associations will lose representation in the House.  Ms. Farber reminded members that although the five-year review has resulted in a loss of delegates and representation, additional delegates can be added each year during the Committee’s annual review process.

Palmer Gene Vance II of Kentucky, Chair of the Committee on Rules and Calendar, provided a report on the Final Calendar for the House, including recently filed reports. He moved to consider the late-filed reports, adopt the final calendar and approve the list of individuals who sought privileges of the floor. All three motions were approved.   Mr. Vance noted that the deadline for submission of Resolutions with Reports for the 2012 Midyear Meeting is Wednesday, November 16, 2011, while the deadline for Informational Reports is Friday, December 2, 2011. He also referred to the consent calendar, noting the deadline for removing an item from the consent calendar or from the list of resolutions to be archived.

Later in the day, Mr. Vance moved the items remaining on the consent calendar. The motion was approved.

For more details of the House meeting, see the following two-part report of the House session. The first part of the report provides a synopsis of the speeches and reports made to the House. The second part provides a summary of the action on the resolutions presented to the House.

I.          SPEECHES AND REPORTS MADE TO THE HOUSE OF DELEGATES

Welcome by the Supreme Court Justice of Canada

Chair Klein welcomed The Honorable Rosalie Silberman Abella, Supreme Court Justice of Canada.  Justice Abella welcomed the delegates to Toronto, Canada.  She proclaimed that she was proud to be a member of the legal profession, as lawyers represent the best hope that justice will be pursued and preserved.  Justice Abella noted the ABA’s role as the key player in protecting the institutions of democracy and justice.  In explaining the need for the ABA, she emphasized that if the public cannot see justice being done, they will stop believing it.  Justice Abella told delegates about how her father came to be hired by Americans to provide legal services in Germany following World War II, which restored his faith in justice, after having been detained in concentration camps.  She explained that she decided to become a lawyer when she was four years old, after her family moved to Canada and her father was told that he could not practice law because he was not Canadian.  She encouraged members to keep leading and inspiring, going forward with wisdom and courage.  

Statement by the Chair of the House

Linda A. Klein of Georgia, Chair of the House recognized members of the various House committees.  She announced that the House webpage can now be accessed directly from the ABA’s home page under “Popular Resources” and that the House Technology Committee would be reporting on the proceedings of the House via Twitter @ ABAhod.

She recognized the Committee on Rules and Calendar and reminded members where they could find the House Rules of Procedure.  Chair Klein introduced the Tellers Committee and reviewed procedures for speaking. 

Chair Klein addressed the importance and need for the work of the Fund for Justice and Education (“FJE”) and urged every House member to support it financially. 

She highlighted the work of the Legal Opportunity Scholarship Fund which was started in 1999.  It funds scholarships to minority law students and over the last 10 years has provided over $3 million in 220 minority scholarships.  Chair Klein announced that one of the scholarships had been named in honor and memory of Armando Lasa-Ferrer, former member of the ABA Board of Governors and former Secretary of the Association.
 
Chair Klein discussed the obligations and responsibilities of House members to take legislative priorities to lawmakers in Washington, D.C.  She asked each delegate to be part of the Grassroots Action Team and attend ABA Day on April 17-19, 2012 in Washington, D.C.  She suggested that members register early, as participation requires advance planning.

Chair Klein encouraged delegates to have their firms become 100% members of the ABA.  At the conclusion of the meeting, she remarked about the large agenda that the House had covered, thanked members of the House for their attention and the courtesies they extended to the speakers.  She also thanked the members of the House committees, the staff supporting the House committees, and the Committee on Rules and Calendar.

Statement by the Secretary

Hon. Bernice B. Donald of Tennessee, Secretary of the Association, moved approval of the House of Delegates Summary of Action from the 2011 Midyear Meeting, which was approved by the House.

On behalf of the Board of Governors, Secretary Donald presented and referred the House to Report Nos. 177 and 177A, which were the Board’s Informational and Transmittal Reports to the House. She moved approval of the continuation of the list of special committees and commissions as contained in Report No. 177A. The motion was approved.

Deceased members of the House were named by the Secretary of the Association, Hon. Bernice B. Donald of Tennessee, and were remembered by a moment of silence.  Chair Klein also asked for recognition of those who had given their lives in Iraq and Afghanistan.

Chair Klein recognized former ABA President Dennis W. Archer of Michigan, on a point of personal privilege to speak in honor of Armando Lasa-Ferrer of Puerto Rico, former member of the ABA Board of Governors and former secretary of the Association.  Michael Byowitz of New York spoke on a point of personal privilege in honor of Norman Redlich, former Dean of NYU School of Law, former Chair of the Section on Legal Education and Admissions to the Bar, and a longtime member of the House. H. William Allen of Arkansas spoke on a point of personal privilege in honor of John C. Deacon of Arkansas, also a longtime member of the House.

Hon. Bernice B. Donald of Tennessee thanked members for the opportunity to serve as Secretary of the Association for the past three years.  She also thanked the ABA for their efforts and support.  She introduced her successor, The Honorable Cara Lee T. Neville of Minnesota.  Secretary Donald then encouraged members to plant a garden and create fertile ground for seedlings to grow.  She said she wanted us to plant five rows of peas – the Ps of professionalism, principle, purpose, preparation, and politeness.  She wanted us to plant three rows of squash to squash apathy, indifference, and unjust criticism.  She wanted us to include several rows of lettuce – let us treat each other with dignity and respect; let us be unselfish and inclusive; let us promote the goals of the Association and the goals of equal justice of the law; and let us always place principle above power and self opportunity.  She concluded by saying that no garden would be complete without turnips.  She said that we need to turn up for meetings.  We need to turn up on time, with ideas, a plan, energy to execute the plan, and an unalterable determination to make everything count for something good.  She encouraged us to work to make today good and successful and to view tomorrow as a gift by which we receive freshness and innocence. 

Statement by the ABA President

            ABA President Stephen N. Zack of Florida told us of his awe for the majesty of the House and the good work that it does.  He thanked everyone for the amazing opportunity to serve as President of an association that has devoted 133 years to defending liberty and pursuing justice.  He noted that his service would not have been possible without a loving family, a supportive firm, and dedicated staff.   

            Noting that membership is the key to all that the ABA does, President Zack reported that we have strengthened our Association in terms of value and visibility.  He explained that our key initiatives have been aggressive recruiting, better business operations, and the use of planning and technology to drive membership and revenue growth.  Those initiatives have been carried out through a membership telemarketing campaign, a “member gets a member” program, and a new website that is more user-friendly.  He reported increases in membership in the judicial division, the solo and small firm division, and the law student division.  He also proudly reported that we have stabilized our membership.  President Zack expressed his appreciation for the hard work of the membership committee.  He told us that “we are on the right path and the future is indeed bright.” 
   
            President Zack emphasized the important work that has been done this year, especially with regard to four initiatives.  First, he described the crisis facing our courts and lauded the work of the Task Force on the Preservation of the Justice System.  He explained that our democracy depends on co-equal judiciary, so we must ensure that our courts are protected.  Second, he praised the work of the Commission on Civics Education. The ABA has fought for funding of civics education, has established academies to teach civics, and has provided lesson plans to lawyers to teach a civics class in high schools across the country.  Third, he thanked the Commission on Hispanic Legal Rights and Responsibilities for its work in promoting the largest minority in the United States within our profession.  President Zack noted that our country will lose respect for the legal profession and the rule of law if the demographics of the legal profession do not reflect those of the country at large.  Lastly, President Zack said we have focused on disaster preparedness by developing a rule that is now being adopted by the supreme courts of many states to allow short-term assistance by lawyers from other jurisdictions in emergencies. 

In closing, President Zack urged the ABA to continue the work of defending liberty and pursuing justice, which it has done for 133 years.

ABA Medal Presentation

            ABA President Stephen N. Zack of Florida introduced David Boies and Theodore Olson, praising their enthusiastic willingness to chair the Task Force on the Preservation of the Justice System and described them as “our own dream team.”  He touted their storied legal careers and called them “a force of nature” together.  President Zack noted that this was the first time that the ABA Medal was awarded to two individuals at the same time.  He said that both Mr. Boies and Mr. Olson stand for honesty, integrity, and civility.  President Zack expressed our gratitude to them and asked them to accept the Association’s highest honor.

            Mr. Boies accepted the ABA Medal, stating that there is no greater honor for a lawyer.  He praised the law as a wonderful profession but one that faces many challenges. He urged us to reinvigorate the profession and use the opportunity to make our society more just, fair, and democratic.  He also praised Mr. Olson, saying that there could not be a better lawyer and friend.  Mr. Boies said that although he and Mr. Olson can passionately disagree, as they do on many issues, they can also work together on issues where they have common ground.  He reminded us that our society works where we advocate with passion but always recognizes our higher duty to the courts and the justice system.

            Mr. Olson thanked President Zack, the Board of Governors, and the ABA members and expressed his gratitude for the honor of receiving the ABA Medal.  He acknowledged the importance of the award to both the Association and the profession.  He stated that he felt privileged to be part of such a rewarding profession that focuses on service to others and to the rule of law.  He noted the practicality of and the need for civility and explained that civility sometimes requires us to say “no” to a client.  He also noted the current crisis in the courts, asking delegates to support the resolution sponsored by the Commission on the Preservation of the Justice System and urging us to use our advocacy for necessary change.  Mr. Olson praised Mr. Boies and stated that the award represents that people from different views should and must work together.

 Presentation by Commission on Ethics 20/20

            Chair Klein recognized Michael Traynor of California, co-chair of the Commission on Ethics 20/20, who summarized the Commission’s work and offered a preview of the issues that will be considered by the House of Delegates during its 2012 Annual Meeting.  The Commission was created in 2009 to help ensure that lawyer regulation keeps pace with legal needs and practices, especially given increasing multi-jurisdictional practice.  Mr. Taynor explained that the proposals that will come before the House will take three forms:  recommendations to amend the Model Rules; recommendations on how the Association can help lawyers practically; and reports on emerging issues.  He noted that all of the proposed rule amendments will be published by September 2011, so as to provide sufficient time for review and comment in advance of the 2012 Annual Meeting.  The Commission’s Reporter, Andrew Pearlman, provided an overview of their seven working groups, which address: technology; outsourcing; lawyer mobility; in-bound foreign lawyers; alternative litigation financing; alternative law practice structures; and law firm rankings.  Judith Miller, chair of the Commission’s outreach committee, told delegates about the public hearings, appearances at bar meetings, CLEs, podcasts, webinars, and presentations conducted by the Commission.     (See PowerPoint presentation.)

Statement by the Treasurer

ABA Treasurer, Alice E. Richmond of Massachusetts, referred members of the House of Delegates to her written report and then summarized the Association’s significant progress on financial matters during the past three years.  She reported on improvements to the ABA's  financial services and reporting activities, including new staff, a new in-house budget system, implementation of an accrual  accounting system, selection of new ABA outside auditors, and the creation of a task force to examine how we describe and utilize our reserves.  She also reported on changes to the ABA’s grant application process and cash management operations. She outlined the ABA's current real estate strategy, including the Chicago headquarters lease renegotiation which resulted in approximately $12 million in savings.  After extended study and approval by the Board of Governors, the ABA's iconic Washington DC building is now on the market and the ABA expects to realize a significant gain from its sale.  Treasurer Richmond informed delegates that the ABA had reaffirmed its commitment to the existing defined benefit retirement program and reported that improving economic conditions and better financial management might result in less volatility in the ABA's ongoing pension obligations for all of its employees. .  Treasurer Richmond then discussed the year-end projections.  She stated that we anticipate ending FY 2011 slightly ahead of budget as to the consolidated revenues, noting that we seem to have stemmed the dues decline and have been increasing non-dues revenue, particularly through the ABA Member Advantage programs.  She also stated that we continue to manage the expense side of the budget very well.   Lastly, she thanked members for the opportunity to serve as the Association’s Treasurer and introduced her successor, Lucian T. Pera of Tennessee.

Presentation by President of the American Bar Endowment

Chair Klein recognized President of the American Bar Endowment, Lee Cooper of Alabama.  Mr. Cooper described the American Bar Endowment, its activities and its unique role in the ABA.  Mr. Cooper presented a check for more than $3.3 million from the ABE to William Hubbard, president of the American Bar Foundation.  Mr. Cooper also presented a check for more than $3.3 million to Alan S. Kopit, chair of the Council for the Fund for Justice and Education to support the projects of the FJE. 

Statement by the Executive Director

ABA Executive Director Jack L. Rives of Illinois reported that, at a critical time for the legal profession, it has been a very busy year for the Association.  He noted there are some 2200 entities in the ABA, and he emphasized the need to avoid self-limiting boundaries between the entities, to make the Association more effective.  Executive Director Rives saluted the work of President Zack and said that it is our responsibility to build upon President Zack’s legacy.  He explained that the staff is committed to execute the vision of the Board of Governors and the policies of the House, and he noted that staff must do so with a sense of urgency.

Executive Director Rives reported that a key for making progress is to prove value to our members.  He stated that while the loss of members continues, the rate of decline has decelerated.  He credited the positive trend to the work of the Association’s leaders, especially the membership committee.  He commented on technology, noting that we are continuing to improve the new website launched mid-year.  We are also attacking the problems associated with email spam.  He noted that we have increased the number of publications, and he highlighted a partnership with Bloomberg that will allow us to reach new markets. 

Executive Director Rives provided an update on the Association’s facilities, reporting on the re-negotiation of the lease in Chicago, the anticipated sale of the Washington, D.C. building, and the search for new space in Washington, D.C.  He echoed the Treasurer’s remarks concerning the progress in financial services, explaining that operational cuts have been made where necessary, so that the Association can operate within its budget.  He also applauded improvements to the budget process.

Executive Director Rives conveyed the staff’s appreciation for the three percent raise they will receive in Fiscal Year 2012, after having their pay frozen for three years.  He reported on five staff task forces -- procurement, staff travel and expense reimbursement, personnel appraisal, meetings and travel, and diversity and inclusion – the first three of which have already completed their reports.  He also reported on the “Why Program,” which has produced more than 175 suggestions.  He assured delegates that we will continue to be innovative and find ways to make improvements.  He spoke about the newly instituted wellness program for staff and the training program that is being implemented for staff. 

Finally, Executive Director Rives reported on the continuing progress of the Association’s business continuity plan.  He noted that the goal is certification, which would be a first for a large association.  While difficult to achieve, we are on track to receive the certification.

Passing of the President’s Gavel

ABA President Zack introduced President-Elect Wm. T. (Bill) Robinson III of Kentucky as a long-time friend and colleague, noting that they have walked through the ABA together.  President Zack noted that President-Elect Robinson previously served with distinction as our treasurer and is now ready to lead the Association.  President Zack then passed the gavel to President-Elect Robinson.

President-Elect Robinson thanked members for the opportunity to serve, remarking that it is such a privilege.  He expressed his gratitude to President Zack for all of his work in representing both the Association and the lawyers in America with enthusiasm and honor.  President-Elect Robinson recognized his family and his law firm, thanking them for their support.  He then emphasized the profound value of the Association’s work, giving numerous examples.  He cited the work of the Commission on Immigration and the lawyers who represent individuals facing the dire consequences of deportation.  He said that we are now able to reassure lawyers that they can practice law without the intrusion of federal agencies, with the defeat of the FTC and Dodd-Frank’s regulation efforts.  He highlighted the importance of diversity, proudly noting that his stellar appointments committee under the very able leadership of Gene Vance of Kentucky helped assure increased diversity in every category of appointments.  President-Elect Robinson stated that even though volunteer service and leadership are part of who we are as lawyers, he will be continuing to encourage lawyers in their volunteer service. 

President-Elect Robinson spoke about Association membership.  He told delegates that prospective members believe that the Association has ably advanced the rule of law but think the ABA will continue doing so, regardless of whether they actually become members.  He emphasized that if we want to increase membership, we need to develop a compelling answer as to why lawyers should join the Association.  He quickly pointed out that we already have the answer in our sections, divisions, and forums, which produce and deliver state-of-the-art content.  We must support them in continuing that important work. 

President-Elect Robinson then spoke about the ABA’s over-all role.  He said that when we speak out on issues of general interest, our voice is diluted.  On the other hand, when we advocate for the rule of law, the ABA becomes the dominant player.  He said that is where we need to be.  As the most pressing illustration, he pointed to the current crisis in our courts, which threatens the viability of the entire justice system and puts our constitutional democracy at risk.  President-Elect Robinson emphatically stated that this underfunding of the state courts presents an issue that gives us an opportunity to demonstrate that the ABA can make a positive difference but that we cannot do it alone.  We must reach out and partner with the community at large and work to ensure access to the courts.  He urged ABA action on this critical and important issue.

    President-Elect Robinson committed to working to cultivate a greater appreciation of the ABA as the bar association that is the voice of the legal profession and emphasized it is a great professional honor to assume leadership of the Association.

Election of Officers of the Association and Members of the Board of Governors

On behalf of the Nominating Committee, Robert T. Gonzales of Maryland, Chair of the Steering Committee of the Nominating Committee, reported on the nominations for officer of the Association and members of the Board of Governors.  The House of Delegates elected the following persons for the terms noted:

Officer of the Association

President-Elect for 2011-2012
Laurel G. Bellows of Illinois

Members of the Board of Governors (2011-2014)

District Members
District 1:  Joseph J. Roszkowski of Rhode Island
District 2:  Josephine A. McNeil of Massachusetts
District 4:  Allen C. Goolsby of Virginia
District 6:  Robert L. Rothman of Georgia
District 12:  Thomas A. Hamill of Kansas

Section Members-at-Large

Section of Business Law
Barbara Mendel Mayden of Tennessee

Senior Lawyers Division
Charles A. Collier, Jr. of California

Minority Member-At-Large
Harold D. Pope III of Michigan

Woman Member-At-Large
Sandra R. McCandless of California

Young Lawyer Member-At-Large
Michael Pellicciotti of Washington

Law Student Member-At-Large (2011-2012)
Brandon Scott Smith of South Carolina

         It was noted that the Association’s Constitution provides that the President-Elect automatically becomes the President at the conclusion of the Annual Meeting and Wm. T. (Bill) Robinson III of Kentucky will assume that office. In addition, The Honorable Cara Lee T. Neville of Minnesota and Lucian T. Pera of Tennessee will assume the offices of Secretary and Treasurer, respectively, at the conclusion of this meeting.

Remarks by President-Elect Nominee

President-Elect Nominee Laurel G. Bellows of Illinois told us of her profound sense of gratitude as she enthusiastically accepted the responsibilities of serving as our next President-Elect.   She encouraged members to approach her with ideas and emphasized that our expertise is needed.  President-Elect Nominee Bellows remarked on the power of the House when it adopts policy, noting that it has changed attitudes and lives.  She praised the work of President-Elect Robinson and his wife, Joan.  In addition, she pledged to follow the distinguished leadership of Past President Carolyn B. Lamm and President Stephen N. Zack and assured a continued seamless transition of message and mission.   

President-Elect Nominee Bellows stated the Association is strong, despite the recession.  She noted that our current success is due to the leadership of our Executive Director and the dedication of the ABA staff. She stated that there was much to do to respond to the expectations of our members to make each of us a better lawyer for having joined the ABA; and, much to do preserve our system of justice, but that together, through the coalition of staff and volunteers, we would achieve our goals.  She thanked her family for their support as she assumes this new and important role.

President-Elect Nominee Bellows said wherever she goes she will carry the message that lawyers matter.   She emphasized that lawyers matter because we understand we are a nation of laws, where ends do not justify the means.  Lawyers matter because we have chosen to serve others and are compelled to speak out against injustice and unfairness and our skilled advocates sworn to defend our Constitution and the rights with which we are endowed as human beings.  She spoke of the delicate balance between liberty and security.  She said that we can work to end the trafficking of women and children, improve the quality of legal education, ensure security but protect freedom, protect the right to civil trial by jury, protect the judiciary from political interference, and increase the value of ABA membership by responding to the needs of solo and small firm lawyers, while working to assure justice for the clients we represent beyond our borders.

President-Elect Nominee Bellows praised the on-going national dialogue about diversity reminding us that we must include gender inequality in that dialogue.  She stated that the quality of our lives is directly correlated to the quality of our laws, and emphasized that lawyers have the responsibility to improve our laws and institutions of justice.  She asked each of us to join her in helping make America a place where the strong are more just and the weak are more secure.  She said that’s why we became lawyers.

Scope Nominating Committee

Jeffrey J. Snell of Ohio, Chair of the Committee on Scope and Correlation of Work, nominated Richard A. Soden of Massachusetts, to the Committee on Scope for a 5-year term beginning at the conclusion of the 2011 Annual Meeting.  The motion was approved. Chair Klein later moved the election of Richard A. Soden, who was elected

Delegate-at-Large Election Results

            Hon. Bernice B. Donald, Secretary of the Association, announced the election of the following members to three-year terms as Delegates-at-Large:  Mark D. Agrast of the District of Columbia; Myles Lynk of Arizona; Andrew Joshua Markus of Florida; Judy Perry Martinez of Louisiana; Pamela J. Roberts of South Carolina; and Robert A. Stein of Minnesota.

II.   RESOLUTIONS VOTED ON BY THE HOUSE

A brief summary of the action taken on resolutions brought before the House follows.  The resolutions are categorized by topic areas and the number of the resolution is noted in brackets.  The Daily Journal for the 2011 Toronto Annual Meeting, which reports the action taken by the House of Delegates, is available on the ABA’s website. To view the final, adopted language of Resolutions and the full text of the Reports, click on the Report Number.

ADMINISTRATIVE LAW

[104B] On behalf of the Section of Administrative Law and Regulatory Practice, Randolph J. May of Maryland moved Revised Resolution 104B urging Congress to update and strengthen federal lobbying laws by requiring fuller reporting of lobbying activities, forbidding certain conflicts of interest, and providing for more effective enforcement of the Lobbying Disclosure Act of 1995.  The resolution was approved as revised.

ARCHIVING

[400] The House approved by consent Resolution 400 recommending that certain Association policies that pertain to public issues and are 10 years old or older be archived.

ASSOCIATION’S CONSTITUTION, BYLAWS AND
HOUSE RULES OF PROCEDURE

[11-1] Edward Haskins Jacobs of the Virgin Islands presented Report 11-1 amending §1.2 of the Constitution to include the following language as one of the purposes of the Association: “to defend the right to life of all innocent human beings, including all those conceived but not yet born.” Brian Melendez of Minnesota, Chair of the Standing Committee on Constitution and Bylaws, reported that the standing committee had reviewed Report 11-1 and voted to recommend that the proposal not be approved, finding it was not suitable for adoption in the Constitution.  Stephen J. Curley of Connecticut moved to postpone indefinitely.  The House approved the motion to postpone indefinitely.

[11-2] Joaquin C. Arriola, Jr. of Guam moved Report 11-2  amending §2.2 and §6.2 of the Constitution and various other sections of the Constitution and the House Rules of Procedure, to provide that each territory, as defined, shall have a seat in the House of Delegates.  Brian Melendez of Minnesota, Chair of the Standing Committee on Constitution and Bylaws reported that the standing committee had reviewed Report 11-2, and approved the form of the proposal but took no position on the merits of the proposal.  Tom Bolt of the Virgin Islands moved an amendment in the nature of a substitute.  R. William Ide III of Georgia spoke against the amendment.  The motion to amend was defeated.  Philip S. Anderson of Arkansas spoke against the proposal.  H. Thomas Wells, Jr. of Alabama and Christopher E. Johnson, Jr. of Michigan spoke in favor of the proposal.  The proposal was approved(See video of debate.)

[11-3] Tommy Preston, Jr. of South Carolina moved Report 11-3 amending §7.2 of the Constitution and various other sections of the Bylaws to change the Law Student member-at-large from a non-voting member of the ABA Board of Governors to a voting member. Brian Melendez of Minnesota, Chair of the Standing Committee on Constitution and Bylaws reported that the standing committee had reviewed Report 11-3, and approved the form of the proposal but took no position on the merits of the proposal. The proposal was approved

[11-4] The House approved by consent Report 11-4 amending §30.5 of the Bylaws to provide that non-U.S. lawyer associates may serve as officers of the Section of Business Law.

[11-5] The House approved by consent Report 11-5 amending §32.1 (d) of the Bylaws to provide that non-U.S. lawyer associates may serve on the Governing Committee of the Forum on Construction Law. 

[11-6] Jeffrey J. Snell of Ohio moved Report 11-5 amending §31.7 of the Bylaws to eliminate the Standing Committee on Environmental Law.  Stephen J. Humes of Connecticut and Irma S. Russell of Montana spoke about the proposal but did not oppose it.   The proposal was approved.

BLANKET AUTHORITY POLICY

[306] On behalf of Robert J. Gaudet, Jr., Royce Murray, Heather Hodges, Benjamin G. Davis, Brant McGee and Sharon Payant, Benjamin Davis of Ohio introduced and the Honorable Bernice B. Donald, Secretary of the Association, moved Resolution 306 amending the Blanket Authority policy to prohibit sections, divisions, and other Association entities from submitting statements or comments under Blanket Authority to any foreign governmental entity including the European Commission or any other foreign government.  Stephen A. Saltzburg of the District of Columbia spoke against the resolution.  Ellen J. Flannery of the District of Columbia moved to postpone indefinitely.  Benjamin G. Davis of Ohio and Mark I. Schickman of California spoke against the motion to postpone indefinitely. Barbara Mendel Mayden of Tennessee spoke in favor of the motion to postpone indefinitely.  The motion to postpone indefinitely was defeated.  The resolution was not approved.  (See video of debate.)

CIVIC EDUCATION

[300] On behalf of the Commission on Civic Education in the Nation’s Schools, Paulette Brown of New Jersey moved Resolution 300 recommending that state, local, and territorial bar associations urge state and local legislatures, education commissions and school boards to mandate civic education classes/courses in elementary, middle and secondary public schools.  The resolution was approved.

CIVILITY

[108] The House approved by consent Resolution 108 affirming the principle of civility as a foundation for democracy and the rule of law and urging lawyers, ABA member entities and other bar associations to take meaningful steps to enhance the constructive role of lawyers in promoting a more civil and deliberative public discourse. 

COURTS/JUDGES

[107] On behalf of the Standing Committee on Judicial Independence, William K. Weisenberg of Ohio moved Resolution 107 urging states to establish clearly articulated procedures for judicial disqualification determinations and prompt review of denials of requests to disqualify a judge.  The resolution was approved.

[123] On behalf of the National Conference of State Trial Judges, W. Terry Ruckriegle of Colorado moved Revised Resolution 123 adopting the Model Time Standards for State Courts, dated August 2011,and urging state judicial systems to adopt and implement the Standards.  The resolution was approved as revised and amended.

[302] On behalf of the Task Force on Preservation of the Justice System, David Boies of New York moved Resolution 302 urging state, territorial, and local bar associations to document the impact of funding cutbacks to the judicial systems in their jurisdictions, to publicize the effects of those cutbacks to create coalitions to address and respond to the ramifications of funding shortages to their justice systems.  The resolution was approved.

CRIMINAL LAW

[10A] On behalf of the Bar Association of the District of Columbia, Gregory S. Smith, moved Resolution 10A urging applicable governmental entities to take all appropriate measures to ensure that the National Criminal Instant Background Check System (NICS) is as complete and accurate as possible, so that all persons properly categorized as prohibited persons under 18 U.S.C. § 922(g) are included in the NICS system.  Cynthia Orr of Texas spoke against the resolution.  Mark I. Schickman of California and Robert L. Weinberg of the District of Columbia spoke in favor of the resolution.  The resolution was approved(See video of debate.)

 [105A] On behalf of the Criminal Justice Section, Stephen A. Saltzburg of the District of Columbia moved Revised Resolution 105A urging the U.S. Sentencing Commission to complete a comprehensive assessment of the guidelines for child pornography offenses, taking into account the severity of each offense. Martha W. Barnett of Florida spoke against the resolution, and William N. Shepherd of Florida spoke in favor of the resolution. The resolution was approved as revised(See video of debate.)

[105B] On behalf of the Criminal Justice Section, Anne J. Swern of New York moved Resolution 105B adopting the Key Requirements for the Certification of Correctional Accrediting Entities, dated August 2011, and urging governments to require that public and private facilities in which adults or juveniles are confined for violations or alleged violations of criminal, juvenile, or immigration laws be accredited by one or more federally-certified accrediting entities.  Cynthia Orr of Texas spoke in favor of the resolution.  The resolution was approved.

[105C] The House approved by consent Resolution 105C urging the Bureau of Prisons, the U.S. Marshals Service, Immigration and Customs Enforcement, and state, tribal and local correctional authorities to develop and implement gender-responsive needs assessments that account for women’s specific needs, including parenting responsibilities, the importance of their relationships, their histories of domestic violence and abuse, and their distinctive patterns and prevalence of mental health issues. 

[105D] On behalf of the Criminal Justice Section, William N. Shepherd of Florida moved Resolution 105D urging governments to adopt disclosure rules in courts requiring the prosecution to obtain from its agents and to make timely disclosure to the defense before the commencement of trial or a guilty plea all information known to the prosecution that tends to negate the guilt of the accused, mitigate the offense charged or sentence, or impeach the prosecution’s witnesses or evidence, except when relieved of this responsibility by a protective order.  The resolution was approved.

[105E] On behalf of the Criminal Justice Section, Stephen A. Saltzburg of the District of Columbia moved Resolution 105E urging the President and the United States Department of Defense to assure that there is an opportunity for public notice and comment with respect to the issuance of the rules for the periodic review of continued law of war detention cases required by the President’s Executive Order No. 13567, 76 Fed. Reg. 13277 (2011).  The resolution was approved.

[109] On behalf of the Commission on Domestic Violence, Mark I. Schickman of California moved Revised Resolution 109 urging governments to enact legislation and appropriate funds to protect sexual crime victims’ rights by eliminating the substantial backlog of rape kits collected from crime scenes and convicted offenders.  The resolution was approved as revised.

[115] On behalf of the Standing Committee on Gun Violence, David J. Pasternak of California moved Revised Resolution 115 supporting federal, state, territorial and local laws that give law enforcement authorities broad discretion to determine whether a permit or license to engage in concealed carry should be issued in jurisdictions that allow the carrying of concealed weapons, and opposing laws that limit such discretion by mandating the issuance of a concealed carry permit or license to persons simply because they satisfy minimum prescribed requirements.  The resolution was approved as revised.

DISASTER RESPONSE AND PREPAREDNESS

[116] On behalf of the Special Committee on Disaster Response and Preparedness, David F. Bienvenu of Louisiana moved Resolution 116 urging all lawyers to regularly assess their practice environment to identify and address risks that arise from any natural or manmade disaster that may compromise their ability to diligently and competently protect their clients’ interests and maintain the security of their clients’ property.  The resolution was approved.

[125] On behalf of the Section of Individual Rights and Responsibilities, James R. Silkenat of New York moved Revised Resolution 125 opposing federal, state, territorial and tribal laws that would alter the duty of care owed to victims of a natural or manmade disaster by relief organizations and health care practitioners and supporting programs to educate relief organizations and health care practitioners about their duty of care owed to victims in a natural or manmade disaster.  The resolution was approved as revised.


ELECTION LAW

[121] On behalf of the Standing Committee on Election Law, Benjamin E. Griffith of Mississippi moved Revised Resolution 121 supporting efforts to improve voter registration practices and urging federal legislation or administrative action creating incentives to encourage election jurisdictions to adopt such improvements.  The resolution was approved as revised.

EMPLOYMENT DISCRIMINATION

[124] On behalf of the National Conference of the Administrative Law Judiciary, Daniel F. Solomon of the District of Columbia moved Revised Resolution 124 urging the President, Congress, the Chair and Commissioners of the Equal Employment Opportunity Commission (EEOC) to adopt measures to provide that employment discrimination hearings conducted by the EEOC comply with the Administrative Procedure Act.  The resolution was approved as revised.

ENVIRONMENTAL LAW

[112] On behalf of the Section of Environment, Energy, and Resources, Lee A. Dehihns III of Georgia moved Resolution 112 urging the United States Government to ensure that federally-recognized Indian tribes (Tribes) listed pursuant to the Federally Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a, may participate fully in policy discussions on the issue of climate change domestically and in international fora.  The resolution was approved.

FAMILY LAW/CHILDREN

[101A] On behalf of the Section of Litigation, Joanne A. Epps of Pennsylvania moved Resolution 101A adopting the Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings, dated August 2011.  Robert E. Stein of the District of Columbia and Marshall J. Wolf of Ohio spoke in favor of the resolution.  The resolution was approved.

 

HEALTH LAW

[114] On behalf of the Health Law Section, Gregory L. Pemberton of Indiana moved Revised Resolution 114 urging governments to assure that predictive and diagnostic medical genetic testing provided on-line, via the telephone, or by any other direct-to-consumer means complies with certain requirements.  The resolution was approved as revised.

IMMIGRATION

[103B] On behalf of the Commission on Youth at Risk, Laura V. Farber of California moved Revised Resolution 103B urging Congress to modify immigration laws to take into account the best interests of minor children who may be affected by a parent, legal guardian, or primary caregiver’s immigration detention or removal.  The resolution was approved as revised.
 
[103C] On behalf of the Commission on Youth at Risk, Laura V. Farber of California moved Resolution 103C urging the Department of Homeland Security to revise its policies so that detained parents, legal guardians, and primary caregivers of children have meaningful participation with their attorneys at judicial proceedings involving their children; and that those involved in family and juvenile courts be educated regarding the connection between state child welfare laws and immigration laws.  The resolution was approved.

[103D] On behalf of the Commission on Youth at Risk, Laura V. Farber of California moved Revised Resolution 103D urging that unaccompanied and undocumented immigrant children in the United States, upon their apprehension by immigration authorities, be screened by independent experts to determine if they are eligible for immigration relief.  The resolution was approved as revised.
 
[104A] On behalf of the Section of Administrative Law and Regulatory Practice, John M. Vittone of Maryland moved Resolution 104A supporting application of the Immigration and Nationality Act to allow persons outside the United States to pursue motions to reopen or motions to reconsider removal (deportation) proceedings on the same basis and subject to the same restrictions that apply to persons who file such petitions from within the United States.  The resolution was approved.

[118] The House approved by consent Resolution 118 supporting measures to improve access to counsel for individuals in immigration removal proceedings. 

[303] On behalf of the Commission on Hispanic Legal Rights and Responsibilities, Cesar L. Alvarez of Florida moved Revised Resolution 303 urging Congress to reject any resolution proposing an amendment to the United States Constitution that would alter, in any way, the granting of United States citizenship under the Fourteenth Amendment to any persons born in the United States (including territories, possessions and commonwealths) based upon the citizenship or immigration status of one or both parents at the time of the person’s birth. With privileges of the floor, Thomas A. Saenz of California spoke in favor of the resolution.  The resolution was approved as revised.

INTELLECTUAL PROPERTY LAW

[117] On behalf of the Section of Intellectual Property Law, Donald R. Dunner moved Revised Resolution 117 supporting the continued application by courts of the legal principles to determine if an issued patent claim meets the definiteness requirement under 35 U.S.C. section 112.  The resolution was approved as revised.

[304A] On behalf of the Section of Intellectual Property Law, Donald R. Dunner of the District of Columbia moved Resolution 304A adopting policy relating to the right of a patent applicant to obtain judicial relief after being denied a patent by the U.S. Patent and Trademark Office.  The resolution was approved.
 
[304B] On behalf of the Section of Intellectual Property Law, Donald R. Dunner of the District of Columbia moved Resolution 304B adopting policy supporting the principle that laws of nature, physical phenomena, and abstract ideas are not eligible for patenting under 35 U.S.C. §101.  The resolution was approved.

 

INTERNATIONAL LAW

[101C] On behalf of the Section of Litigation, Joanne A. Epps of Pennsylvania moved Resolution 101C adopting as best practices the Protocol on Court-to-Court Communications in Canada-U.S. Cross-Border Class Actions and Notice Protocol:  Coordinating Notice(s) to the Class(es) in Multijurisdictional Class Proceedings, dated August 2011, and urging courts and counsel in cross-border class action cases involving the United States and Canada to adopt the Protocols.  With privileges of the floor, Irwin Warren of New York, spoke in favor of the resolution.  The resolution was approved.

 [113A] On behalf of the Section of International Law, Michael Byowitz of New York moved Resolution 113A opposing federal or state laws that impose blanket prohibitions on consideration or use of foreign or international law and opposing federal or state laws that impose blanket prohibitions on consideration or use of the entire body of law or doctrine of a particular religion.  The resolution was approved.

[113B] On behalf of the Section of International Law, Andrew Joshua Markus of Florida moved Resolution 113B urging Congress to fund U.S. participation in capital increases and replenishments for the World Bank, the Inter-American Development Bank, the African Development Bank, and the European Bank for Reconstruction and Development.  The resolution was approved.

[301] On behalf of the Section of Business Law, Maury B. Poscover of Missouri moved Resolution 301 supporting development and harmonization of international trade and commerce and the establishment of predictable systems of secured lending through the adoption of secured transactions reform in developing countries and encouraging lawyers to support and participate in efforts to have secured transactions reform adopted in developing countries.  The resolution was approved.

LAW AND AGING

[106A] On behalf of the Commission on Law and Aging, Jeffrey J. Snell of Ohio moved Resolution 106A urging Congress, and all federal, state and territorial administrative bodies to continue efforts to expand the availability of home and community based services as a viable long term option.  The resolution was approved.

[106B] On behalf of the Commission on Law and Aging, Jeffrey J. Snell of Ohio withdrew Resolution 106B urging the United States Department of Health and Human Services to ensure that all health care providers that participate in Medicare and Medicaid refrain from providing treatment not wanted by patients and seeking reimbursement for such treatment.

[106C] On behalf of the Commission on Law and Aging, Jeffrey J. Snell of Ohio moved Resolution 106C encouraging the United States Department of State and the United Nations and its member states to support the ongoing processes at the United Nations and the Organization of American States to strengthen protection of the rights of older persons, including the efforts and consultations towards an international and regional human rights instrument on the rights of older persons.  The resolution was approved.

LEGAL AID AND INDIGENT DEFENDANTS

[122] On behalf of the Standing Committee on Legal Aid and Indigent Defendants, the Honorable Vanessa Ruiz of the District of Columbia introduced and the Honorable Bernice B. Donald, Secretary of the Association, moved Resolution 122 adopting the ABA Standards for Language Access in Courts, dated August 2011, and urging courts and other tribunals to give high priority to the prompt implementation of these Standards.  With privileges to the floor, the Honorable Eric Washington of the District of Columbia spoke about the resolution. The Honorable Fernande R.V. Duffly of Massachusetts moved to postpone the resolution indefinitely. The House approved the motion to postpone indefinitely(See video of debate.)

LEGAL EDUCATION

[10B] On behalf of the New York State Bar Association, Steven P. Younger of New York moved Resolution 10B recommending that law schools, law firms, CLE providers and others concerned with continued professional development provide the knowledge, skills and values that are required of the successful modern lawyer.  Pauline A. Schneider of the District of Columbia spoke regarding the resolution but did not oppose it.  Lawrence Fox of Pennsylvania moved an amendment, which was approved.  Vincent E. Doyle of New York and Tiffany V. Colbert of Florida spoke in favor of the resolution.  The resolution was approved as amended(See video of debate.)

[100] The House approved by consent Resolution 100 granting approval and reapproval to several paralegal education programs, withdrawing the approval of three programs at the requests of the institutions, and extending the term of approval to several paralegal education programs.

[102] On behalf of the National Native American Bar Association, Mary Smith of Illinois moved Resolution 102 urging the Law School Admissions Council and ABA-approved law schools to require additional information, including Tribal citizenship, Tribal affiliation or enrollment number, and/or a “heritage statement”, from individuals who indicate on their applications for testing or admission that they are Native American.  The resolution was approved.
 
[111A] On behalf of the Young Lawyers Division, Carrie Ann Baker of Florida, moved Revised Resolution 111A urging Congress to enact legislation that assists individuals who are experiencing financial hardship due to excessive levels of student loan debt but are not covered by the provisions of the student loan overhaul passed into law on March 30, 2010. Alyssa Ehrlich of California spoke in favor of the resolution. The resolution was approved as revised.

[111B] On behalf of the Young Lawyers Division, David B. Wolfe of New Jersey moved Revised Resolution 111B urging all ABA-Approved Law Schools to report employment data that identifies whether graduates have obtained full-time or part-time employment within the legal profession, whether in the private or public sector, or whether in alternative professions and whether such employment is permanent or temporary.  The resolution was approved as revised.
 
[119] The House approved by consent Resolution 119 concurring in the action of the Council of the Section of Legal Education and Admissions to the Bar in making amendments to Standards 512, 306 and 105, and to Rules 20 and 24 of the ABA Standards and Rules of Procedure for Approval of Law Schools, dated August 2011.

LITIGATION

 

[101B] On behalf of the Section of Litigation, Lawrence J. Fox of Pennsylvania withdrew Resolution 101B adopting the Standards of Conduct For Experts Retained By Lawyers, dated August 2011, and urging counsel to incorporate the Standards in lawyer engagement agreements with experts. 

[305] On behalf of Robert J. Gaudet, Jr., Royce Murray, Heather Hodges, Joseph Federici, Benjamin G. Davis, Brant McGee and Sharon Payant, Benjamin G. Davis of Ohio introduced and the Honorable Bernice B. Donald, Secretary of the Association, moved Resolution 305 encouraging the European Commission to adopt rules allowing for class actions within the 27 Member States.  Michael H. Byowitz of New York spoke against the resolution.  Joseph G. Krauss of the District of Columbia moved to postpone indefinitely.  Benjamin G. Davis of Ohio spoke against the motion to postpone indefinitely. The House approved the motion to postpone indefinitely(See video of debate.)

MILITARY LAW

[120]   The House approved by consent Resolution 120 urging Congress to amend the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA” or “the Act”), 38 U.S.C. §§ 4301–4335, by adding provisions to require employers to provide certain reasonable accommodations for returning veterans with combat injuries that may not manifest themselves until after a return to work.  

UNIFORM ACTS

[110A] The House approved by consent Resolution 110A approving the Revised Uniform Law on Notarial Acts, promulgated by the National Conference of Commissioners on Uniform State Laws in 2010, as appropriate legislation for those states desiring to adopt the specific substantive law suggested therein. 

[110B] On behalf of the National Conference of Commissioners on Uniform State Laws, Robert A. Stein of Minnesota moved Resolution 110B approving the Uniform Collaborative Law Rules/Act, promulgated by the National Conference of Commissioners on Uniform State Laws in 2010, as appropriate legislation or rules for those states desiring to adopt the specific substantive law suggested therein.  Lawrence J. Fox of Pennsylvania, Carolyn B. Lamm of the District of Columbia, Jonathan W. Wolfe of New Jersey, and Joanne A. Epps of Pennsylvania spoke against the resolution.  Marna S. Tucker of the District of Columbia, Michael S. Greco of Massachusetts, and Michael Houghton of Delaware, who had privileges of the floor, spoke in favor of the resolution.  Robert A. Weeks of California moved the previous question and the question was called.  The resolution was defeated by a vote of 154 to 298.  (See video of debate: Part One; Part Two; Part Three.)

 

YOUTH AT RISK

[103A] On behalf of the Commission on Youth at Risk, Laura V. Farber of California  moved Revised Resolution 103A urging state legislatures to enact laws that effectively aid minors who are victims of human trafficking.  The resolution was approved as revised.

Closing Business

At the conclusion of the meeting of the House on Tuesday, August 9, Chair Klein remarked about the large agenda that the House had covered, thanked the delegates for their attention, especially to the late filed reports.  She thanked members of the House for their attention and the courtesies they extended to the speakers.  She also thanked the members of the House committees, the staff supporting the House committees, and the Committee on Rules and Calendar.

            David F. Bienvenu of Louisiana was recognized to make a presentation to delegates regarding the 2012 New Orleans Midyear Meeting. 

            Tracy A. Giles of Virginia moved a resolution in appreciation of the Toronto lawyers and judges, for their work in hosting the meeting.  The motion was approved.

Chair Klein recognized Palmer Gene Vance II of Kentucky who then moved that the House adjourn sine die.  The motion was approved.