Regulation Committee Highlights

2020

April

The Standing Committee on Professional Regulation Committee drafted and submitted to the Chair of the Ethics Committee its comments on that Committee’s initial draft Resolution to amend Model Rule of Professional Conduct 1.8. The draft proposal would create an exception that would allow lawyers, under certain circumstances, to provide subsistence assistance to indigent clients. The Ethics Committee has indicated it will file a Resolution on this subject with the House at the 2020 Annual Meeting.  The Regulation Committee advised the Ethics Committee that it could not support the proposal as drafted, raising a number of substantive and procedural concerns for Ethics Committee consideration. The Regulation Committee’s comments were consistent with those provided by other Center for Professional Responsibility entities. 

The Professional Regulation Committee, through a subcommittee and informal advisory committee of stakeholder representatives (including the Young Lawyers Division), has begun analysis of the responses to the questionnaire it disseminated to state supreme courts, regulators, disciplinary adjudicators, and respondents’ counsel seeking views on needed amendments to the black letter ABA Standards for Imposing Lawyer Sanctions. The Committee has received notice from several state supreme courts of their interest in this project. The Subcommittee and informal advisory group will meet in May 2020 to develop a work plan and timeline for this significant project that will ultimately result in a Resolution to the House of Delegates.

Regulation and Global Initiatives Counsel Ellyn Rosen and Ethics Counsel Mary McDermott provided assistance to the Standing Committee on Legal Assistance to Military Personnel (LAMP) in developing comments responsive to a Code of Federal Regulation Notice proposing changes to Veterans Administration Regulations that had lawyer ethics and regulatory implications. In addition to analyzing the proposed changes to the regulations, they reviewed and provided comments on a draft response by LAMP that was being developed in coordination with the ABA Governmental Affairs Office.

Regulation and Global Initiatives Counsel is finalizing the proofing of the 2018 ABA Survey on Lawyer Discipline Systems (SOLD) for publication. SOLD is the only national compilation of data about caseload, sanctions, funding, and staffing of lawyer disciplinary agencies and its data is relied upon by state supreme courts, the media, and the public.

Regulation and Global Initiatives Counsel Ellyn Rosen is a member of the conference steering committee and conference planning committee for 2020 International Conference of Legal Regulators.  She participated in teleconferences to commence planning for this event, which will be held in Chicago in late October 2020.  

March

The Standing Committee on Professional Regulation Committee and Regulation and Global Initiatives Counsel received from the Chair of the Standing Committee on Ethics and Professional Responsibility a draft Resolution seeking to propose amendments to Model Rule of Professional Conduct 1.8. The proposal seeks to amend Model Rule 1.8 to create an exception that would allow lawyers to provide indigent clients with funds or items to support their essential needs.  The Committee held a teleconference to discuss the proposed Black Letter and Comment Amendments.  The Committee will prepare and send to the Ethics Committee its comments, questions, and concerns about this proposal by the requested April 3, 2020 deadline.

The Professional Regulation Committee continues to collect and compile responses to the questionnaire it disseminated to state supreme courts, regulators, disciplinary adjudicators, and respondents’ counsel seeking input on its project to update the black letter ABA Standards for Imposing Lawyer Sanctions. The Committee has received notice from several state supreme courts of their interest in this project. The Chair of the Regulation Committee contact the presidents of NOBC, APRL, NCLDB, and the Chairs of the Young Lawyers Division Ethics Committee seeking their appointment of members to an informal advisory committee to assist the Regulation Committee and its Subcommittee in evaluating questionnaire responses and drafting proposed updates to the black letter Standards for consideration by the full Regulation Committee. Responses to the questionnaire are due in April 2020.

While the Regulation Committee had to reschedule its planned 4th Proactive Management-Based Regulation (PMBR) Workshop due to the COVID 19 pandemic, it continues providing PMBR resources on its web page devoted to this issue.  The Iowa Supreme Court is the most recent jurisdiction to adopt a form of PMBR.   The Committee will continue to seek innovative ways to implement its joint 2019 Resolution with the Young Lawyers Division on this subject, including planning webinars.

The Professional Regulation Committee continues considering ways in which it can help implement Revised Resolution 115, which was adopted by the House of Delegates. Revised Resolution 115 encourages states to explore innovative ways to address the access to justice crisis, including regulatory innovations.  The Resolution further encourages jurisdictions to collect data during their study as well as implementation of regulatory innovations.  The Regulation Committee will continue working with the ABA Center for Innovation and ABA leadership on this matter, as well as with other relevant entities.

The Regulation and Global Initiatives Counsel and Ethics Counsel responded to inquiries from the ABA Governmental Affairs Office and the Standing Committee on Legal Assistance to Military Personnel on matters with ethical and regulatory implications.

Regulation and Global Initiatives Counsel Ellyn Rosen continues to partner with ABA ROLI Asia to assist a new bar in establishing rules of professional conduct and a lawyer disciplinary mechanism. The proposal that she and ROLI staff submitted to the 2020 International Legal Ethics Conference Planning Committee for July 2020 was accepted.    

Regulation and Global Initiatives Counsel and the Data Bank Administrator did an online demonstration of the National Lawyer Regulatory Data Bank for the Federation of Law Societies of Canada. In addition, Regulation and Global Initiatives Counsel consulted with Ethics Counsel for the Federation of Law Societies of Canada regarding enforcement issues relating to ABA Model Rule of Professional Conduct 8.4(g) prohibiting discrimination and harassment.

2019

December

The Standing Committee on Professional Regulation submitted an application to present a Showcase CLE session at the 2020 ABA Annual Meeting. The proposed session focuses on how lawyers’ role as gatekeepers to the U.S. justice system warrants increased vigilance to avoid becoming entangled in money laundering schemes. If chosen, experts in anti-money laundering and professional regulation will discuss what lawyers from Main Street to Wall Street should be doing to identify red flags and implement the ABA’s Good Guidance for Lawyers.

A subcommittee of the Professional Regulation Committee met by teleconference to finalize a draft survey for regulators to assist the Committee in developing a toolkit to help them address conscious and implicit bias in disciplinary charging decisions and adjudications. The Survey will be disseminated in early 2020.

Regulation and Global Initiatives Counsel Ellyn Rosen moderated a Center for Professional Responsibility webinar entitled: Ethical Considerations and Best Practices When Representing Low Income and Vulnerable Individuals: Clients with Diminished Capacity. Jenny Mittelman, Deputy General Counsel of the State Bar of Georgia, and Marianne Conrad, a Managing Attorney with Indiana Legal Services were panelists. This session, that drew just over 300 registrants, was cosponsored by the Standing Committee on Legal Aid and Indigent Defendants (SCLAID) and the Section of Civil Rights and Social Justice. This webinar is the first in a planned series of ethics sessions for legal aid lawyers that will comprise a new collaboration between the Center and SCLAID.

Regulation and Global Initiatives Counsel participated in a teleconference of the Conference of Chief Justices Foreign Lawyers Working Group. During that call, the Committee discussion updates in trade in legal services and regulatory developments in the U.S. and abroad. Other participants included representatives of the Law Society of England and Wales, the CCBE, and IBA.
 

October

The Standing Committee on Professional Regulation commenced planning a session at the 2020 ABA Midyear Meeting to update regulators about new ABA Policy on Proactive Management-Based Regulation and new implementation efforts at the state level. The Committee is working with Professor Susan Fortney of the Texas A&M School of Law and other regulators to develop the program for this event.  A date has not yet been determined for this session.  Planning is also underway for the Committee’s 4th PMBR Workshop to be held in conjunction with the 2020 ABA National Conference on Professional Responsibility.

The Regulation Committee and the Regulation and Global Initiatives Counsel are actively monitoring regulatory innovations and developments in the U.S. These include the most recent changes in Utah, proposals in Oregon, the issuance of the Arizona Task Force on the Delivery of Legal Services Report, proposals under consideration in California, the new Chicago Bar Association and Chicago Bar Foundation group, and the efforts to the Association of Professional Responsibility Lawyers, among others.  The Committee will discuss these matters at its November 2019 meeting and determine what, if any action, to take.  

Regulation and Global Initiatives Counsel Ellyn Rosen is speaking with Canadian regulators about the ABA National Lawyer Regulatory Data Bank. The new Data Bank platform allows international lawyer regulators to submit records relating to public regulatory actions by U.S. licensed lawyers, and those regulators may also have secure access to the Data Bank to check whether lawyers licensed in their jurisdictions have been publicly disciplined.

September

The Standing Committee on Professional Regulation met by teleconference to discuss its priorities for FY 2019 – 2020. One priority will be, in continued collaboration with the Young Lawyers Division, implementation of Joint Resolution 107. This new ABA Policy on Proactive Management-Based Regulation urges state supreme courts to study and adopt jurisdictionally appropriate Proactive Management-Based Regulation (PMBR) programs. The Committee will commence planning of its 4th PMBR Workshop to be held in conjunction with the ABA 2020 Midyear Meeting in Austin Texas. In addition, the Committee has submitted a program proposal about implementation of Resolution 107 to the National Conference of Bar Presidents for its 2020 Midyear.

Regulation and Global Initiatives Counsel Ellyn Rosen and Ethics Counsel Dennis Rendleman assisted the ABA Governmental Affairs Office regarding its preparation of comments to be submitted by the ABA President relating to proposed rule changes by the Consumer Financial Protection Bureau relating to lawyers.

Regulation and Global Initiatives Counsel Ellyn Rosen spoke at the 2019 International Conference of Legal Regulators on a panel entitled “Regulating in Uncomfortable Spaces.” In addition, in response to questions raised during sessions about reciprocal discipline and international lawyer regulatory cooperation, she advised attendees of the ability of the National Lawyer Regulatory Data Bank to accommodate international public lawyer regulatory actions. The ABA Data Bank is unique not only nationally, but globally. Ms. Rosen is following up on requests from other countries’ regulators to provide additional information about the Data Bank and how they may participate.

Regulation and Global Initiatives Counsel Ellyn Rosen continues to assist the ABA Rule of Law Initiative regarding a project to help an Asian country develop rules of professional conduct and a lawyer disciplinary system, among other functionalities for its bar association.