2023
April
Regulation and Global Initiatives Counsel and the DEI Committee of the National Organization of Bar Counsel (NOBC) discussed their join project to develop and disseminate to regulators a survey designed to gather information about unconscious bias in disciplinary charging decisions and adjudications. A joint subcommittee is developing the Survey for approval by the Standing Committee on Professional Regulation and the NOBC DEI Committee, after which time it will be disseminated, and data compiled to assist in the development of resources for lawyer disciplinary agencies.
On April 7, 2023, the Standing Committee on Professional Regulation and Standing Committee on Ethics and Professional Responsibility approved for filing with the House of Delegates for the 2023 ABA Annual Meeting a Resolution to amend the Model Rules of Professional Conduct to address lawyers’ client due diligence obligations. Subsequently, the Committees reviewed, discussed and approved the draft Report to be filed with the Resolution.
The Professional Regulation Committee met and discussed the latest draft of a proposed Resolution and Report from the Section of Civil Rights and Social Justice as part of an ongoing conversation with the Section about lawyer disciplinary proceedings and lawyers involved in the 2020 election. The Committee will convey its comments and position on the draft to the Section sufficiently in advance of the May 9, 2023, House of Delegates’ filing deadline.
A member of the Professional Regulation Committee attended a meeting of the Joint Working Group developing proposed amendments to the Comments of Model Rule 1.1 (Competence) to address lawyer well-being. At that meeting, several entities’ comments received in response to a Discussion Draft of the proposed amendments were discussed. The Regulation Committee had previously voted to support the Discussion Draft as that document incorporated its comments on the prior iteration.
At the request of the Office of the ABA President, the Regulation and Global Initiatives Counsel and Ethics Counsel reviewed and provided comments on a draft Resolution on confidentiality of the lawyer-client relationship to be presented at the upcoming meeting of the G7 Bar Associations. Their recommendations were accepted, and concomitant changes made to the draft Resolution.
March
A consultation team of the Regulation Committee met and finalized recommendations for a lawyer discipline system consultation. The Committee’s consultation team will present its draft Report to the Committee for approval at its June 2023 meeting, and the final Report will be submitted to the state supreme court that retained the Committee’s services soon thereafter.
The Standing Committee on Professional Regulation met to finalize the substance of a Resolution to be filed jointly with the Standing Committee on Ethics and Professional Regulation to amend the Model Rules of Professional Conduct to address lawyers’ client due diligence obligations. The Committee’s discussion took into consideration written comments provided and testimony received at public roundtables. The Standing Committees intend to proceed to the House of Delegates with a proposal on this subject at the 2023 ABA Annual Meeting.
The Professional Regulation Committee met and discussed the publicly circulated draft of proposed amendments to the Comments of Model Rule 1.1 (Competence), to address lawyer well-being.
The Chair of the Committee and Regulation and Global Initiatives Counsel spoke about the future of lawyer regulation at a Symposium hosted by the South Carolina University School of Law, for which ABA Past President William Hubbard is Dean. The Symposium was entitled “Through the Looking Glass: The Future of Legal Ethics and Lawyer Regulation in the United States.”
Regulation and Global Initiatives Counsel, Deputy General Counsel of the Georgia State Bar, and Managing Attorney for Intake & Volunteer Lawyers at the Legal Aid Society of Cleveland met to finalize materials and hypothetical scenarios for an upcoming ethics presentation at the 2023 Equal Justice Conference.
Regulation and Global Initiatives Counsel Ellyn Rosen participated in the first organizing Zoom for the 2023 International Conference of Legal Regulators. Ms. Rosen is a member of the planning committee.
February
A consultation team of the Regulation Committee continued developing recommendations and drafting a Report for a lawyer discipline system consultation. The Committee’s consultation team will present its draft Report to the Committee for approval at its June 2023 meeting, and the final Report will be submitted to the state supreme court that retained the Committee’s services soon thereafter.
The Standing Committee on Professional Regulation and Standing Committee on Ethics and Professional Responsibility held a public roundtable on February 28, 2023, on the Third Discussion Draft setting forth possible proposed amendments to the Model Rules of Professional Conduct to address lawyers’ client due diligence obligations. The Standing Committees intend to proceed to the House of Delegates with a proposal on this subject at the 2023 ABA Annual Meeting.
The Standing Committee on Professional Regulation cosponsored two Resolutions adopted by the House of Delegates at the 2023 ABA Midyear Meeting based on its substantive contributions to the development of the Resolutions and accompanying Reports. Resolution 500, proposed by the Administrative Law Section, addressed issues relating to the regulation of lawyers in administrative agency adjudicative proceedings. Resolution 704, proposed by the ABA Beneficial Ownership Working Group of which the Chair of the Regulation Committee is a member, updated the ABA’s policy relating to disclosure of entity beneficial ownership information. The Committee joined the Professionalism Committee and Judicial Division in a motion to postpone the adoption of Resolution 400. The Committee’s support of the motion was based on its view that further study of open legal questions relating to the enforceability of any code of conduct for the U.S. Supreme Court Justices was needed. The motion failed and Resolution 400 was adopted.
The Regulation Committee finalized and submitted to the Joint Working Group comments on a discussion draft of possible amendments to the Model Rules to address lawyer well-being and professional competence.
The Center Director and Regulation and Global Initiatives Counsel presented by Zoom an update on Center for Professional Responsibility initiatives and upcoming events at the 2023 National Organization of Bar Counsel Midyear Meeting.
Regulation and Global Initiatives Counsel Ellyn Rosen continued consulting with the Bar Council of the Maldives relating to lawyer disciplinary procedures. In response to a request for guidance, she provided research relating to disciplinary procedures and complaint handling to assist the Bar Council in proposing amendments to its rules.
Regulation and Global Initiatives Counsel worked with the ABA Representative to the International Bar Association (IBA) on a project that could result in a an IBA policy relating to lawyers as gatekeepers. They recommended proposed changes to a draft to align with ABA policy.
January
The Standing Committee on Professional Regulation and National Organization of Bar Counsel agreed to collaborate on a project relating to diversity, equity, and inclusion in disciplinary agencies and the disciplinary process. Representatives from each entity will meet in February 2023.
The Standing Committee on Professional Regulation met, discussed, and finalized its Third Discussion Draft setting forth possible proposed amendments to the Model Rules of Professional Conduct to address lawyers’ client due diligence obligations. The Regulation Committee and Standing Committee on Ethics and Professional Responsibility released the Discussion Draft for comment inside and outside the ABA and also hold a public roundtable about it in February 2023. In addition, as the request of a local bar association, the Regulation Committee met and provided comments on a possible Resolution for the 2023 ABA Midyear Meeting.
A member of the Committee and Regulation and Global Initiatives Counsel attended a meeting of the Center for Professional Responsibility working group studying possible amendments to Model Rule of Professional Conduct 5.5.
Regulation and Global Initiatives Counsel Ellyn Rosen and Ethic Counsel Mary McDermott worked with the ABA Governmental Affairs Office (GAO) to review and provide comments on blanket authority letters prepared by the Administrative Law Section.
Regulation and Global Initiatives Counsel presented a continuing legal education program to the Chicago Bar Association Unauthorized Practice of Law Committee relating to Model Rule 5.5, including efforts to study whether and how it could be amended. The presentation updated the Chicago Bar Association Committee on such efforts within the ABA Center for Professional Responsibility and addressed the proposal by the Association of Professional Responsibility Lawyers.
Regulation and Global Initiatives Counsel Ellyn Rosen continued consulting with the Bar Council of the Maldives relating to lawyer disciplinary procedures. She provided research and guidance to the Bar Council about how disciplinary agencies in the U.S. and other countries handle the opening of disciplinary complaints by a disciplinary agency on its own initiative, without having first received a complaint. This research will assist the Bar Council in its consideration of amendments to the Maldives lawyer disciplinary procedural rules.