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    ABA House adopts new dues structure, urges Congress to address family border separation

    August 7, 2018 1:10 PM by glynnj

    The ABA House of Delegates wrapped up its two-day meeting Tuesday in Chicago, after approving a new membership model, updating lawyer-client communication model rules and urging the U.S. government to never again pursue the policy of separating families at the southern U.S. border.

    Concluding the 2018 ABA Annual Meeting Tuesday, the House approved Resolution 10C, which asks the Executive Branch and Congress to fix the border situation and ensure a policy of separation is never reinstated. In introducing the resolution on behalf of the Minnesota State Bar Association, state Senior Judge Cara Lee Neville summed up the message to the government this way: “Stop it. Fix it. And don’t do it again.”

    “This is not a political issue,” she said. “This is a civil rights issue. This is a humanitarian issue.”

    A stream of speakers, including former ABA President Stephen Zack (2010-11), supported the resolution, which passed unanimously. Zack, a Miami attorney, recounted his own experience of being separated as a young boy in 1961 from his parents while the family was leaving Cuba. “I can tell you I remember every minute of that night,” he said. “I have never forgotten a moment of those 24 hours (of separation).”

    On Monday, the House, the association’s policy-making body of 601 delegates from state, local and specialty bar associations, adopted the new membership plan (Resolution 177), which effectively streamlines the ABA membership scheme by reducing some dues at the highest level and cutting the price points of membership from 157 to five. Under the plan, which takes effect Sept. 1, 2019, ABA members will have access to more and better content, including hundreds of free CLEs and information curated and delivered according to members’ individual interests and specifications.

    The five new ABA dues categories are $75, $150, $250, $350 and $450, depending on years as a lawyer and type of practice. Law students will still receive free membership.

    The lawyer communications measure (Resolution 101) culminates several years of work by the ABA Standing Committee on Ethics and Professional Responsibility and affiliated groups, which have shepherded the process for review of model rules related to advertising and lawyer communications with clients. 

    The action updates ABA Model Rules for state licensing regulators to consider that relate to communications with and solicitation of clients, lawyer advertising and communication of fields of practice and specialization. The changes, which clarify and simplify current rules, emphasize false and misleading advertising and are intended to reflect a balance between First Amendment rights and consumer protection.

    In other action over two days the House:

    • Concurred with four legal education resolutions, including one expanding the opportunity for online legal education under the ABA Standards and Rules of Procedure for Approval of Law Schools. A fifth resolution, which would have relaxed the requirement for a “valid and reliable” test, like the LSAT, in the law school admissions process, was withdrawn. About two dozen law schools now allow for the GRE, and the challenge for the Council of the ABA Section of Legal Education and Admissions to the Bar, the national accreditor of law schools, is how to determine what constitutes a “valid and reliable” admissions test.

    • Approved Resolution 300 that urges legal employers not to require mandatory arbitration of claims of sexual harassment. The ABA Commission on Women in the Profession sponsored the proposal, which has become a rallying cry in the #MeToo movement that has grown amid allegations of widespread sexual harassment. “It is time that we act,” said outgoing ABA President Hilarie Bass, who stepped down at the conclusion of the Annual Meeting.

    • Approved Resolution 114, which adopts the black letter and commentary to the ABA Ten Guidelines on Court Fines and Fees and urges governmental agencies to promulgate law and policy consistent with the guidelines. The guidelines are intended to minimize excessive penalties if an individual cannot afford to pay them. “We can alleviate this distrust through commonsense policies that ensure equal treatment of rich and poor and fair by considering the individual financial circumstances of people charged with offenses,” said Rob Weiner, chair of the Working Group on Building Trust in the American Justice System. 

    • Adopted Resolution 118 that supported qualified transgendered people to serve in the U.S. Armed Services without discrimination.

    For a complete list of House actions click here.


    Human rights panel worries about Trump policies; lauds activism of lawyers in response

    August 7, 2018 1:06 PM by glynnj

    What is the impact of President Donald Trump’s “America First” approach to human rights and other issues? That was the subject of the program “International Human Rights: Law and Policy in the Trump Administration” held at the ABA Annual Meeting in Chicago.

    Panelist Elisa Massimino, senior fellow at the Carr Center for Human Rights Policy at Harvard University Kennedy School of Government and former president of Human Rights First, said that there was nothing inherently wrong with an “America First” approach, but what was different with Trump is that he doesn’t accept the longtime consensus on the long-standing liberal, rules-based world order.

    That was reflected, she said, in the administration stepping back from the United Nations Human Rights Council and discontinuing State Department annual human rights reports, among other moves.

    Those responses were, Massimino said, “depending on the issue, hostility or neglect.”

    Moving on to immigration, panelist Mary Meg McCarthy, chair of the ABA Commission on Immigration and executive director of Heartland Alliance’s National Immigrant Justice Center, said the difference now with the Trump administration has been the “evisceration of due process rights.” Before, she said, immigrants were free from arbitrary detention and free to seek asylum. But today’s situation denies “fundamental protections that are essential to a functioning democracy,” and it has all been done by executive order, not by legislation.

    “What we’re seeing is … a brutality, a brazenness, a mean-spirited process that seeks to dehumanize noncitizens and persons of color,” she said.

    “The rhetoric coming from Trump reverberates in a dangerous way internationally,” Massimino said, adding that what the president says and does, and how he demonizes others has consequences around the world.

    She said that historically the U.S. government has celebrated a free press in the promotion of democracy, including giving journalists in other countries access to training. But today there is no campaigning to free imprisoned journalists, as in the past, and the president pushes an anti-media rhetoric that leaders in other countries pick up.

    The Trump administration is different from others in that “this president has very few really committed ideals,” Massimino said. “He is much more a textbook populist.” Referring to how he speaks at his political rallies, she said, “The impact of that goes beyond the United States.”

    Reflecting on the Muslim ban and changes in immigration law, McCarthy said we are seeing an increase in the number of people being detained and arrested in neighborhood raids. These are subtler than workplace raids and are not getting enough attention, she said. She added that the treatment of immigrants in detention is also worse than before.

    She also noted the elimination of DACA and the end of protected status for Hondurans, Salvadorans, Haitians and Guatemalans. “The whole asylum system is being dismantled,” McCarthy said.

    Massimino added that the refugee treaty says you can’t turn back people at the border who are fleeing persecution, but the administration is trying to deter people from coming by “treating them so badly; by separating families, by prosecuting them, sometimes by preventing them from even reaching the border.”

    Moderator James R. Silkenat, ABA past president and director and treasurer of the World Justice Project, asked if there are there any bright spots in Trump’s approach to human rights. Massimino pointed to the Global Magnitsky Act, which President Barack Obama signed and which says the U.S. can sanction anyone who has anything to do with Sergei Magnitsky’s killing in Russia in 2009. That has been globalized through the Treasury Department’s Office of Foreign Assets Control and has been used to sanction 76 human rights abusers. It is a success story, she said, and it has strong bipartisan support.

    Another bright spot is civilians and lawyers showing up at airports after the “travel ban” and jumping in to help immigrants at the border. This activism, Massimino said, will have to keep going “longer than the normal attention span of Americans,” but she said she’s been very encouraged by what she’s seen.

    McCarthy’s bright spots are the media paying sustained attention to the plight of immigrants, and state and local governments stepping up to protect immigrants from cruel and harsh treatment.

    On the topic of Trump’s personnel appointments, Massimino said, “personnel is policy.” She noted that 500-plus days into the administration, they finally nominated an assistant secretary of state for democracy, human rights and labor. There has been no move to appoint a special envoy on anti-Semitism and the role of special advisor to the president on human rights has been recast as a special advisor on international organizations and alliances.

    Massimino referred to the UN Human Rights Council as a highly flawed body and an “easy punching bag,” but said it’s the only place in the UN where victims of human rights abuses can go to challenge the policies of their governments in public. “It plays a unique and historic role,” she said.

    The U.S. withdrawal from the council marks the first time a member has voluntarily left; and the U.S. joins Iran, North Korea and Eritrea as the only countries that refuse to participate in it. The reason cited was the treatment of Israel, but human rights abuses go down when the U.S. has a seat at the table, she said, and without American leadership bad treatment of Israel will likely increase and victims and activists in countries like North Korea Bahrain and Syria will suffer.

    “International Human Rights: Law and Policy in the Trump Administration” was sponsored by the ABA Section of Civil Rights and Social Justice.

    Outgoing president passes gavel; new leadership outlines priorities for coming term

    August 7, 2018 1:01 PM by glynnj

    Hilarie Bass passed the gavel to Bob Carlson as he became president of the American Bar Association on Aug. 7 at the Annual Meeting in Chicago. In his remarks he said he was “humbled” by the trust placed in him.

    The attorney at Corette, Black, Carlson & Mickelson PC in Butte, Mont., said that today was not about him, but about the American Bar Association.  

    “We cannot let pessimism or cynicism define us,” he said. “Our profession, and our nation, needs the ABA’s strong, national, collective voice as so many other voices – powerful voices – mock due process, ridicule equal justice under the law and scorn our independent judiciary.”

    To “cynics who say we’re driven by ideology,” Carlson clarified, “Our ideology is the essential role of an independent judiciary. We are the protectors of equal justice under law in a free, democratic society. That is our ideology.”

    The new president plans to raise awareness of member benefits, including ABA Blueprint, ABA Insurance and ABA Leverage. “ABA Blueprint will also expand the roster of vendors, enable user reviews and distribute how-to content from ABA entities to reach more lawyers and help them in their practices,” he said of the resource for solo and small-firm lawyers.

    Carlson plans to building on the momentum of Hilarie Bass’ Future of Legal Education initiative and the ABA Center on Innovation, and “build on our national leadership to encourage pro bono and legal aid for veterans, homeless youth and other vulnerable communities.”

    He will promote the association’s Disaster Legal Services as the theme of Celebrate Pro Bono in October and is particularly interested in continuing “to improve our profession in another critical area, the work of the ABA Task Force on Lawyer Well Being.

    The new president and new president-elect Judy Perry Martinez plan a trip to Harlingen, Texas, later this month to see firsthand the work of the many volunteer lawyers representing separated families and other migrants.

    Carlson concluded his speech by saying that some consider the ABA “passé.” He responded that anyone thinking that should ask a recipient of legal aid services, an active military member or a veteran, a victim of a natural disaster, the lawyers and judges around the world benefiting from the ABA Rule of Law Initiative, or an unaccompanied minor at the border. They could tell those skeptics what “America’s lawyers do through this association.”

    Bass looks back on a year of accomplishments

    In her farewell speech to the House of Delegates, President Hilarie Bass said her pride in all the good work the American Bar Association does reached a new level recently during the on-going immigration crisis involving the separation of families.

    “I have never felt prouder as I watched the hundreds of ABA colleagues from throughout this country who stepped up to fight injustice and make a difference in the lives of families in need,” she said.

    Specifically, Bass cited the hundreds of lawyers who participated in a recent ABA webinar about providing pro bono assistance for separated children and their parents; the website quickly put together by the ABA Fund for Justice and Education about how to volunteer, donate or assist in advocating for change in current immigration policies; ABA ProBAR, which has been training volunteers how to represent migrant families each week since the crisis began; the law firms that have been sending pro bono lawyers to Texas to help with “credible fear hearings”; and the ABA entities that have been organizing volunteers to help as lawyers, guardians and social workers.

    Those volunteers “look to our organization as the beacon for providing justice,” she said.

    Noting the spike in donations to FJE and offers from foundations and other organizations to work with the ABA on multi-disciplinary approaches to reunify families, Bass said, “The desire to fight injustice once again remains at the heart of what the ABA stands for.”

    Bass turned to the accomplishments of her initiatives, starting with the Legal Needs of Homeless Youth. Domestically, the ABA worked to pair law firms, in-house counsel groups and bar associations with homeless youth shelters to provide pro bono legal assistance.

    “In just the past few weeks, we launched a pilot program where at Apple and at Google, in-house lawyers can sit at their desks and Skype with their clients in homeless shelters in their cities to provide the legal assistance they need,” she said. “They’ll have our toolkit on their desk and they’ll have the phone number of an expert available to answer questions. This concept of providing Skype-based legal assistance could be a game changer for our pro bono work.”

    Of her Achieving Long-term Careers for Women in Law initiative, Bass discussed some of the results of the year-long studies undertaken, including “not surprisingly, that the number-one thing women most disliked about the practice of law was their perception that they were being discriminated against based on their gender.”

    She said women reported “remarkably different work experiences from men at the same level of practice,” such as more than 60 percent of women felt they were perceived to be less committed to their careers than the men they worked with.

    Bass said the initiative would be coming back to the House of Delegates next year “with a list of specific recommendations that law firms and companies can implement to once and for all ensure that our legal profession is as hospitable to women lawyers as it is to men.”

    She reported that the Commission on the Future of Legal Education “is launching empirical studies this year and will be recommending specific actions relating to the bar exams that will reflect a more modern understanding and balancing of the knowledge, skills, judgment and values required from our graduates.”

    The commission will also work with the ABA Center for Innovation to complete “a set of aspirational principles to which law schools and employers can voluntarily subscribe, bar examiners will be able to collaborate on assessment priorities and students can use to better understand what they should expect from their legal education and licensure process in the 21st century,” she said.

    On the issue of lawyer wellness, Bass said that the Working Group to Advance Attorney Well-Being developed a toolkit and a Model Impairment Policy for Legal Employers, which “is focused on ensuring early identification of impairment and proper intervention to prevent, mitigate and treat this problem,” she said.

    Bass also hailed the work of the Young Lawyers Division’s Disaster Legal Services. This year, they responded to major disasters in Houston, Florida, California, Puerto Rico and the Virgin Islands, among others. During a recent trip to Puerto Rico, she and President-elect Bob Carlson “were constantly thanked for the incredible work of our own YLD.  Their work has earned the respect and recognition of everyone from FEMA and local LSC providers to the disaster volunteers and victims throughout the country.

    Bass also noted improvements within the association, including the new mobile-enabled website, which will be rolling out soon, and the recently implemented realignment and reorganization. She urged the delegates to vote to accept the new membership model, which will lower dues in all categories, bring membership categories down to just five and curate content to fit each member.

    She concluded by saying, “The American Bar Association has never been more important in the United States and in the world. We must continue to stand up for the rule of law, to speak out in support for the independence of the judiciary and to ensure that our profession lives up to its ideals.”

    Martinez assumes role as president-elect

    Judy Perry Martinez stressed the importance of innovation and the strength of the association as she became president-elect of the American Bar Association on Tuesday at the Annual Meeting in Chicago.

    Martinez, of Simon, Peragine, Smith & Redfearn in New Orleans, said she learned about the essential right to counsel when her firm represented a Louisiana death row inmate for nine years, an experience she said “changed me as a lawyer, as a citizen and as a human being.”

    She noted that she and the inmate grew up minutes from each other in St. Bernard Parish, yet were worlds apart.” She grew up middle class while he spent most of his childhood in a juvenile detention facility and they experienced “vast differences in opportunities, expectations, second chances, support and hope.”

    Martinez’ legal team was not able to stop his execution, and the experience “changed me as a lawyer, as a citizen and as a human being.”

    Speaking of the ABA, she said it “must be purposeful and deliberate in our ongoing assessment of the association’s state of affairs.”

    The special advisor to the ABA Center for Innovation stressed that it is the association’s duty to be “forward thinking.”

    “Lawyers need our help, and when we find that technology, reform or innovation can improve the delivery of legal services, we must not resist by simply saying ‘that is not the way we have always done it.’ That response is no longer acceptable,” Martinez said.

    She called for redoubling efforts toward inclusion and diversity in the profession, and for lawyers to reach out to those like the inmate she represented.

     “We must give our best to those whom we the lawyers have taken an oath to protect and serve.”

    Workplace paradigm shift thanks to “National Awakening” around sexual harassment

    August 7, 2018 9:00 AM by glynnj

    Jenny Yang, former chair of the U.S. Equal Employment Opportunity Commission, says the national awakening around harassment – particularly sexual harassment – goes deeper than anomalous acts by rogue individuals.

    “That could certainly be the case, but in many work environments, the problem is more systemic and cultural and there are deeply embedded structural and cultural factors that are contributing to harassment,” Yang said during a panel discussion “Sexual Harassment in the Workplace” on Aug. 4 at the ABA Annual Meeting in Chicago. “We’ve seen that power structures hide problems as well as fail to actually hold leaders accountable when they see problems.”

    Yang was joined on the panel by Tracey Billow, a partner at Seyfarth Shaw LLP in Chicago; Veronica Giron, who has led efforts to address sexual harassment in the workplace in California through SEIU United Service Workers West, Ya Basta Movement; and Jennifer Reisch, legal director, Equal Rights Advocate in San Francisco.

    During her tenure at the EEOC, Yang organized a task force to study harassment in the workplace after growing frustration of seeing the same type of cases around the country, in many instances, a male restaurant manager harassing young women. The Select Task Force on the Study of Harassment in the Workplace issued a 2016 report.

    The task force put together a report that studied the various trainings that had been done over the years and recommended minimal trainings designed to change the workplace culture. Since the report, Yang said she’s seen employers encouraging rethinking the kind of training encouraging more bystander intervention and encouraging more people to step up and they are providing multiple avenues of filing a complaint. She said employers are reevaluating their complaint processes and an innovative step has been to create a more confidential process, which has caused an increase in formal complaints.

    Yang said it is important not to put the onus on victims of discrimination to come forward.

    “It is incredibly important for leadership to engage on these issues, to be willing to understand the scope of a problem, through focus groups and assessments and for leadership to be affirmatively leading efforts to solve these problems,” Yang said. “Ultimately you need that commitment to shifting the power dynamics so that if you have underrepresentation of women in the workforce you’re doing a comprehensive assessment where you’re increasing the pipeline and insuring more diversity.”

    Billow said the cultural shift she’s seen is where leaders are stepping forward and starting a new culture in the work place one of respect and civility. “Employers are being empowered to know that they have a responsibility in helping the organization to maintain its culture of respect,” Billow said. ““It’s not about harassment prevention, but understanding and knowing how you want to be characterized as an organization and reinforcing that standard at all times, in meetings and trainings and beyond.”

    Giron said it’s important that leadership understand that women need “space to speak up.” She said it could take woman years to be able to “process what happened and speak up.” Her organization, SEIU United Service Workers West, represents more than 40,000 janitors, security officers, airport service workers and other property service workers across California.

    Reisch also agreed that, “there is a shift happening, a real paradigm shift in how we think about what sexual harassment is and what solutions to discrimination need to look like.”

    The moderator for the discussion was Robin Runge, a councilmember of the ABA Section of Civil Rights and Social Justice and chair of the section’s Sexual Harassment in the Workplace Working group.

    To listen to a full discussion of the program, click here.

    The Sexual Harassment in the Workplace panel is part of a six-part series.

    To listen to previous webinars, click on the links below and insert your name and email to gain access to the programs.

    Part One: Sexual Harassment & Assault in the Workplace: What is it, where does it come from, what is its scope and impact, and what is the history of sexual harassment law in response to it?

    Part Two: Barriers to Combatting Sexual Harassment In and Out of Court and Legislative Responses in the #MeToo Moment

    Part Three: Hey Hun! Just how bad do you want your heat fixed?" – Sexual Harassment in Residential Housing.

    Part Four: The Shameful Truth: Sexual Harassment in the Legal Profession

    Part Five:What is the Link Between Sexual Harassment, Sexual Assault and Domestic Violence in the Workplace?,”

    Partnering with the ABA Section of Civil Rights and Social Justice for the six-part series were the ABA Commission on Domestic & Sexual Violence, the ABA Commission on Women in the Profession, and the ABA Young Lawyers Division. Co-sponsors for the Annual Meeting panel: ABA Commission on Women in the Profession, ABA Commission on Domestic & Sexual Violence,, Criminal Justice Section, Center for Human Rights, Section of International Law, Commission on Immigration, Section of Labor and Employment Law, Section of Litigation (invited), Section of State and Local Government Law, Sexual Orientation and Gender Identity Commission, Commission on Disability Rights, Standing Committee on Professionalism and Section of Family Law.


    ABA House approves changes in membership dues, rules for lawyer advertising

    August 6, 2018 6:25 PM by glynnj

    The American Bar Association House of Delegates took major steps Monday to attract more members and to strengthen and simplify model rules dealing with lawyer communications with clients.

    The resolutions, while separate and distinct, reflect the ABA’s focus on change, including making both the association more valuable to current and prospective members and offering more timely and relevant guidance to lawyers and regulators in a fast-moving technological age.

    The House, made up of 601 delegates from state, local and other bar associations and legal groups, meets again Tuesday in Chicago, concluding the 2018 ABA Annual Meeting. The membership plan (Resolution 177) effectively streamlines the ABA membership scheme, reducing some dues at the highest level and cutting the price points of membership from 157 to five. The House also approved changes in bylaws necessary for the new dues structure.

    The simplified dues structure is a central feature of a new membership model that will reduce costs for most members and provide enhanced membership benefits for all ABA members. It will take effect starting the fiscal year that begins Sept. 1, 2019. Under the plan, ABA members will have access to more and better content, including hundreds of free CLEs and information curated and delivered according to members’ individual interests and specifications.

    The five new ABA dues categories are $75, $150, $250, $350 and $450, depending on years as a lawyer and type of practice. Law students will still receive free membership.

    The lawyer communications measure (Resolution 101) culminates several years of work by the ABA Standing Committee on Ethics and Professional Responsibility and affiliated groups, which have shepherded the process for review of model rules related to advertising and lawyer communications with clients. 

    The action updates ABA Model Rules related to communications with and solicitation of clients, lawyer advertising and communication of fields of practice and specialization. Advocates contended the current web of complex, contradictory and detailed advertising rules impedes lawyers’ efforts to expand their practices and thwart clients’ interests in securing the services they need. 

    Lucian Pera, chair of the ABA Center for Professional Responsibility, said the changes, which emphasize false and misleading advertising, reflect “the proper balance between First Amendment rights and consumer protection” and “clarify and simplify the rules.”

    In other action Monday:

    ·       The House concurred with four legal education resolutions dealing with affecting the ABA Standards and Rules of Procedure for Approval of Law Schools, while a fifth was withdrawn in the face of growing opposition.

    The leaders of the Council of the Section of Legal Education and Admissions to the Bar withdrew Resolution 111D that would have made changes to the law school admissions policy, including removing the requirement for law schools to collect scores for an admission test, such as the LSAT. The standard requires that schools have a “valid and reliable” test and about two dozen have said they would accept the GRE for incoming students.

    Barry Currier, managing director for legal education accreditation, said, “The concerns that our delegates heard from other members of the House will be reported to the council and the council will determine how it wishes to proceed.”

    The House concurred with the other legal education changes, including a restructuring that eliminates the council’s Accreditation and Standards Review committees and folds their work into the council. It also concurred with changes in standards related to distance education and simulation courses, clinics and field placements. Under the rules, the House can concur or send back legal education resolutions twice to the council with or without recommendations but final decisions rest with the council, which is recognized by the U.S. Department of Education as national accreditor of law schools.

    ·       Approved Resolution 114, which adopts the black letter and commentary to the ABA Ten Guidelines on Court Fines and Fees and urges governmental agencies to promulgate law and policy consistent with the guidelines, which are intended to minimize excessive penalties if an individual cannot afford to pay them. “We can alleviate this distrust through commonsense policies that ensure equal treatment of rich and poor and fair by considering the individual financial circumstances of people charged with offenses,” said Rob Weiner, chair of the Working Group on Building Trust in the American Justice System.

    For a complete list of House actions Monday and to review the rest of the resolutions click here.


    Tarmac delays, support animals, more: Airline rights discussed by panelists

    August 6, 2018 2:30 PM by glynnj

    Joseph Trytten, a law student at Tulane Law School, travels a lot with his saxophone. He said he’s fed up with the airlines’ “inconsistent” handling of his instrument case.

    He’s not alone. Every day, consumers’ rights are tested during air travel.

    “[Airline] employees don’t seem to know the rules,” said Trytten, who attended the program “Flyers’ Rights: What Every Traveler Should Know” held Aug. 3 at the American Bar Association Annual Meeting in Chicago.

    The program explored the rights of air travelers in situations ranging from waits on the tarmac, to traveling with animals and music instruments.

    The panel featured aviation experts from law firms, American Airlines and the Department of Transportation.

    Meghan Ludtke, managing director of regulatory affairs at American Airlines, said one of the questions she is asked most is, “why is the plane late?”

    She explained that many factors contribute to the timeliness of a plane, including weather, maintenance issues, security problems and congestion on the tarmac.

    Ludtke and Maegan Johnson, a senior trial attorney with the U.S. Department of Transportation’s Office of Aviation Enforcement and Proceedings, disagreed over who benefits from new federal regulations on tarmac delays.

    Johnson said that during a tarmac delay the DOT requires airlines to provide a comfortable cabin temperature, working toilets and medical assistance, if needed.  

    The rules also require airlines to provide passengers with food and water after a two-hour tarmac delay. After three hours passengers must be given the option to deplane.

    Johnson said the rules were implemented in response to incidents in which passengers were stranded aboard airplanes for long periods because of flights delays.

    However, Ludtke said the tarmac rules have resulted in even more cancelled flights than ever.

    She noted that for the first six months of 2018, 1,700 flights were canceled due to the tarmac rules. “The cost is in the millions of dollars,” she said.

    Airline rules concerning animals on airplanes were also discussed.

    Johnson said DOT allows emotional support animals and psychiatric service animals in the cabin planes.  She said emotional support animals’ presence helps to eliminate any discomfort a passenger may have; the animal’s presence helps the person and the animal can sit on a passenger’s lap. She said generally, the psychiatric service animals are trained to do something specific, such as lick your face, during a flight.

    Some audience members said they have been on an aircraft with a pig and peacock. However, Johnson said those animals in the cabin are rare.

    Airlines have guidelines to determine whether an animal is a service animal and require documentation for psychiatric support animals and emotional support animals.

    The biggest area of concern for passengers in this area is safety, Johnson said. There have been incidents of dogs biting passengers and getting into fights with other animals on the plane.

    Ludtke said that airlines have lately dealt with fraud-related cases, such as breeders trying to transport animals for free.

    “People have been misrepresenting their pets, “Johnson said. In May, the DOT issued a notice of proposed rulemaking, seeking comments on amending its Air Carrier Access Act, which regulates the transportation of service animals.

    Ludtke said American Airlines has seen a spike in the number of emotional support animals and that many people just don’t want to fly their animals in the belly of the plane. Therefore, some people try to take advantage of the rule.

    Audience members were curious about the rights of other passengers when animals are on board. Airlines try to accommodate allergy sufferers by reseating them or putting them on another flight at no cost, according to panelists.

    Also on the panel were Aleksandra Puscinska of Clyde & Co. in London, and moderator Amna Arshad of Jenner & Block, and co-chair of the ABA Young Lawyers Division Committee on Air & Space Law.

    The program was sponsored by the ABA Young Lawyers Division.

    Courting disaster: Being unprepared for cyberattacks can prove costly

    August 6, 2018 10:00 AM by glynnj

    Cyberattacks of our election process have dominated the headlines the past two years. But cyberattacks that affect our nation’s court system also can cause devastating harm to our democracy.

    During the American Bar Association’s 2018 Annual Meeting in Chicago, the program,“Cyberattacks and the Courts — What Attorneys Should Know to Protect Sensitive Client Information,” looked at just how widespread the problems already are.

    The computer networks of state and federal court systems are under daily attack by cybercriminals. Michael Neuren, I.T. programs manager for the administrative office of the courts of Georgia, led off the panel with the story of how the city of Atlanta was taken hostage.

    Hackers infiltrated the city’s computer network and held it for ransom, asking for $51,000 in bitcoin. The city contacted the FBI, Homeland Security and their vendors and did everything they were supposed to do. Authorities recommended that they not pay. For several weeks, Atlantans could not pay water bills online, get driver’s licenses reinstated or get access to the court system.

    It took until June, at a cost of more than $12 million, to get everything up and working again.

    So, should Atlanta have paid the $51,000 instead? Shoba Pillay, assistant U.S. attorney for the Northern District of Illinois, said it is usually better to pay, especially if you do not have a working backup. She said Hollywood Presbyterian Medical Center in California was hit by a ransomware attack in 2016; they paid $17,000 to get back online rather than risk the lives of their patients.

    Pillay pointed out the hard truth that most of these hackers are either in foreign countries, outside the reach of U.S. law enforcement, or children, who cannot be prosecuted to the full extent as adults. She said court breaches are more common than most people think and that most occur through spear phishing. Phishing messages usually appear to come from a large and well-known company or website, such as PayPal. In the case of spear phishing, however, the apparent source of the email is likely to be an individual within the recipient’s own company – generally, someone in a position of authority – or from someone the target knows personally.

    Daniel A. Cotter of Latimer LeVay Fyock LLC in Chicago warned against using thumb drives, which too many people pick up as giveaways at events. These can be infected with a virus that is loaded into your computer and system when you plug it in. “Using thumb drives is like using gas station restrooms,” Cotter quipped. “You don’t know who used it before you and what they may have left behind.”

    Most breaches are the result of human error. In fact, 81 percent of hacks result from weak or stolen passwords. The panel recommended training people on password security, and suggested limiting use of administrative passwords that might make the job easier, but also allows hackers access to your entire system if the acquire it.

    Groups that use ransomware are generally business people looking for a payday and set their ransoms at a relatively reasonable rate, which makes groups more willing to pay. Other hackers infiltrate systems purely for the challenge and thrill, “to achieve the unachievable,” as Pillay described it. Other groups, known as hacktivists, may breach a system to prove a point or cause disruption.

    Courts, while not particularly wealthy, do have valuable information such as personal data on citizens (driver’s license numbers, Social Security numbers, etc.). Court filings also can contain trade secrets or information on criminal proceedings that are worth stealing.

    Since courts and attorneys store this information, there is an ethical responsibility to protect it, said Kenneth T. Lumb of Corboy & Demetrio in Chicago. Each state has its own rules and statutes, a “fragmented framework,” Lumb called it, but all 50 states have some sort of notification rule that includes a “reasonable timeframe.”

    As more states have adopted e-file and, in wake of last year’s massive Equifax breach, a greater awareness has been given to notification responsibilities. California has the strictest, with a 72-hour notification requirement.

    The Model Rules of Professional Conduct require a lawyer to keep abreast of “the benefits and risks associated with relevant technology.” Lawyers need to understand how things work and take measures to protect client information. The panel recounted several instances where lawyers filed documents that were incorrectly redacted, making it simple for the press and others to view what they believed was redacted.

    Malpractice insurance may not cover lawyers if data is stolen, and cyber insurance should be carefully reviewed to make sure it covers all types of information theft. But the entire panel agreed that paying money up front for security, backups and insurance saves a whole lot of money down the road.

    Of course, budget constraints are always a concern, but as Marcia M. Meis, the director of the Administrative Office of the Illinois Courts pointed out, “cyber security has to be a priority. You just have to use your resources in the best way possible.”

    Yearly check-ups of your systems and security measures were recommended, but balance was also stressed, both in how you use your resources, but also between locking a system up too tight so that people cannot work effectively. Cyberattacks are a reality and will remain with us. For lawyers, being prepared and cautious is critical.

    The session ended with each of the panelists offering up a quick bit of advice on how to avoid cyberattacks::

    • Securing passwords and adequately training employees.
    • Do not to click on unknown links or attachments.
    • Training, awareness and communication. If you see something, say something to your IT staff.
    • Follow through on security updates and patches.
    • Do not assume your people know even the basics. Some people need to be reminded that they are not related to a Nigerian prince who will send them money.
    • Always have a Plan B and a continuity plan if the worst occurs. Don’t get caught by surprise.


    ABA honors 5 women trailblazers for career achievements

    August 5, 2018 4:33 PM by glynnj

    Five inspiring women lawyers honored Aug. 5 at the ABA Annual Meeting with the 2018 ABA Margaret Brent Women Lawyers of Achievement Award were lauded as pioneers supporting the careers of other women lawyers nationally and internationally and serving voices of conscience in a profession still striving to achieve its ideals of full diversity and inclusion in the law.

    Margaret Brent Award recipients (left to right: Cynthia Nance, Tina Tchen, Eileen Letts, Consuelo B. Marshall, Patricia Kruse Gillette)

    Stephanie Scharf, chair of the ABA Commission on Women in the Profession, told the audience of more than 500 people at the luncheon event, that the honorees “are wonderfully brave women who not only did something but will continue to do something.”

    Watch video of Margaret Brent Award recipients' acceptance speeches: 

    Patricia Kruse Gillette
    Eileen M. Letts
    Consuelo B. Marshall
    Cynthia E. Nance
    Tina Tchen

    The ABA Margaret Women Lawyers of Achievement Award, established in 1991, honors outstanding women lawyers who have achieved profession excellent in their area of specialty and have actively paved the way to success for others.

    In their acceptance speeches, the honorees praised their colleagues and others who have supported their careers and called for continued work to move more women and diverse lawyers into the highest levels of the profession.

     “For years, the legal industry has been trying to fix the women, when in fact the problem is with the system,” said honoree Patricia K. Gillette, saying that law firms and organizations need to be pushed to “look systematically for the problems that are keeping women out.” Gillette was a top-rated employment lawyer and litigator for 40 years before resigning her partnership at Orrick, Herrington & Sutcliffe in 2015 to pursue her passion as an author and public speaker. Gillette joined Judicial Arbitration and Mediation Services, Inc. in September 2016, and now mediates employment-related cases. In 2006, Gillette co-founded the Opt-In Project, a nationwide initiative promoting the retention and advancement of women in the workplace. She has been a member on the ABA Commission on Women in the Profession and the ABA’s Gender Equity Task Force, as well as co-chair of the Bar Association of San Francisco’s No Glass Ceiling Initiative. In recognition of her work to advance women in the profession, Gillette has received several awards, including the ABA Golden Hammer Award, the California Women Lawyers Association’s Fay Stender Award and the Barristers Association of San Francisco Award of Merit

    Citing grim statistics on the paucity of women of color as law firm partners, honoree Eileen M. Letts, a partner at Zuber Lawler & Del Duca LLP, added: “We have got to do more.” She also praised the initiative of ABA President Hilarie Bass to probe the phenomenon of experienced women lawyers leaving the profession just as they attain its highest levels. Prior to her private practice, Letts served as assistant corporate counsel for the city of Chicago and as a staff attorney on the Chicago Housing Authority. As a young lawyer, Letts served as chair of the Young Lawyers Section of the Chicago Bar Association, the first African-American to hold the position. She serves on the ABA advisory council for the presidential initiative, Achieving Long-Term Careers for Women in Law. During her six years of service to Chicago, Letts represented the city in a number of high-profile cases before joining private practice at Jones Ware & Grenard in the late 1980s. She co-founded Greene and Letts in 1990, and after 26 years, the firm joined forces with Letts’ current firm, Zuber Lawler & Del Duca LLP, gaining a national presence and new capabilities.

    Consuelo B. Marshall, senior U.S. district judge of the United States District Court for the Central District of California, was praised as someone who has “devoted her life to pursuing justice” and thanked the Women’s Commission for the honor of “adding my name to the list of outstanding women who have been recipients of the Margaret Brent Award, on whose shoulders we have all stood.” Marshall began her career as a deputy city attorney in Los Angeles, the first woman ever hired as a lawyer by the Los Angeles city attorney’s office. After joining the private practice firm Cochran & Atkins in Los Angeles during the 1960s, she decided to pursue a career on the bench, serving as a juvenile court commissioner and a judge for the Inglewood, Calif., municipal court, through the late 1970s. Marshall was appointed to the United States District Court for the Central District of California in 1980 by President Jimmy Carter. In 2001, she became the first woman to serve as chief judge of the Central District of California. She has served on committees for the Ninth Circuit, the Federal Bar Association and the Association of Business Trial Lawyers. She is also an active member of the International Association of Women Judges and currently serves on the RAND Institute for Civil Justice Board of Overseers and as a board member of Equal Justice Works.

    Cynthia E. Nance, director of pro bono and community engagement at the University of Arkansas School of Law, was applauded as a “pioneer” in the law and for her commitment to mentoring young people. She urged the audience to help others achieve their dreams and goals. “If you want to touch the future, touch a life – give back,” she said. In 2006, Nance became the first woman and the first African-American dean of the University of Arkansas School of Law, and the first woman law school dean in the state of Arkansas. She is the Eighth Circuit member of the ABA Standing Committee on the Federal Judiciary and represents the ABA Labor and Employment Law Section in the House of Delegates. In 2012, the Arkansas Supreme Court appointed Nance to the Arkansas Judges and Lawyers Assistance Committee and she remains a current member of that group. She has been a scholar-in-residence at University of Iowa College of Law and Washington University School of Law. Her professional work has been published by the Iowa Law Review, Berkeley Journal of Employment and Labor Law and many other publications.

    Tina M. Tchen thanked the Women’s Commission for its more than 30 years of leadership and advocacy “to advance the cause of women’s rights.” She said laws banning gender discrimination and sexual harassment “are too limited -- they set the bar for unacceptable behavior too low. They’ve allowed toxic workplace cultures to develop, and those cultures have not allowed our workers and lawyers in law firms to work in places where they feel safe [and] supported.” Tchen is a partner at Buckley Sandler in Chicago. Tchen has successfully argued before the United States Supreme Court on behalf of the state of Illinois and has handled complex civil litigation and enforcement matters both in state and federal courts in Illinois and across the country. Prior to joining Buckley Sandler in 2017, Tchen served as an assistant to President Barack Obama, executive director of the White House Council on Women and Girls, and chief of staff to First Lady Michelle Obama. She is a leader of Buckley Sandler’s Workplace Cultural Compliance Practice and guides companies in approaching cultural compliance issues.

    The award is named for Margaret Brent, the first woman lawyer in America.  Brent arrived in the colonies in 1638, and was involved in 124 court cases in more than eight years, winning every case. In 1648, she formally demanded a vote and voice in the Maryland Assembly, which the governor denied. 

    Previous Margaret Brent winners range from small-firm practitioners in Alabama and Alaska to U.S. Supreme Court Associate Justices Sandra Day O’Connor and Ruth Bader Ginsburg. Winners are selected on the basis of their professional accomplishments and their role in opening doors for other women lawyers.

    Non-English language Miranda tools promise major changes in criminal justice arena

    August 5, 2018 1:09 PM by glynnj

    The test is tiny, but the hope is beyond big.

    Six New Orleans police officers and detectives are now carrying large laminated cards with pictorial representations that incorporate a recording of the Miranda warning in Spanish and have a Spanish-language video of the Miranda warning in their cars as well. The tools, demonstrated Saturday at the American Bar Association Annual Meeting in Chicago, developed from a unique collaboration with the ABA Center for Innovation and other ABA entities, New Orleans police, the ITT Institute of Design and law students in Chicago and New Orleans.

    “I believe this will change the scope and way police departments across the country will operate,” said Commander Otha Sandifer, the New Orleans officer who is supervising the 45-day test.

    Judy Martinez, a New Orleans-based attorney who will become ABA president-elect Tuesday at the end of the Annual Meeting, brokered the arrangement among the New Orleans Police Department, the Center for Innovation and the other groups. Since 2012, the NOPD is operating under a consent decree after a U.S. Department of Justice found patterns related to use of force, biased policing and other civil rights violations, and the test is being overseen by Sandifer, who heads the compliance division.

    Sandifer explained Saturday that so far, those officers involved in the test have not faced a situation to use the tools. The pictorial tool operates like a Hallmark greeting card with a voice message. The video, in Spanish, is shown on a screen in the police car to those who have no or limited English proficiency and speak Spanish. The tools are designed to be used in view of a body camera, which will allow the entire delivery of the Miranda rights in Spanish to be recorded.

    “Better to have it and not need it, rather than need it and not have it,” Sandifer said.

    The goal of the initiative is to provide better access to justice and develop Miranda warnings in multiple languages for police officers to use across the country. Since the U.S. Supreme Court ruled in 1966 in Miranda v. Arizona that police must inform criminal defendants that they have a right to an attorney and the right to remain silent during questioning, law enforcement authorities have made little progress in producing accurate and understood translations for people who are arrested and do not speak English. Also, faulty translations or an inability to effectively deliver accurate ones have led to arrests and convictions being thrown out of court.

    The project is an outgrowth of ABA policies and reports in 2016 and 2017 that outlined the need for accurate and readily available Miranda warnings in Spanish and other languages. An estimated 12.7 million adults in the United States have limited English-language proficiency. Language tools, such as these, will give greater credibility to law enforcement and better message the meaning of the rule of law, advocates say.

    “To be honest, we do not know where this is going to lead,” said Richard Pena, an Austin, Texas, attorney who chairs the ABA Commission on Hispanic Legal Rights and Responsibilities, which sponsored the 2016 policy resolution. “We don’t know the ultimate impact. We can say it has tremendous potential. It is no brainer.”

    Jeremy Alexis, senior lecturer at IIT Institute of Design, and Moire Corcoran, a master of design student and design team leader, both described the unusual chemistry among designers who typically embrace failure, and law enforcement and lawyers, who are adverse to it. The current tool, they pointed out, developed through repeated iterations.

    “Think of it as a slow funnel,” Alexis said, explaining the development process. He noted NOPD officers were shown numerous prototypes and “the feedback loop is so important.”

    Corcoran acknowledged that at times there was a clash of cultures although nobody wanted to admit failure. Designers care more about the person than the process -- often paramount in law enforcement and the rule of law, she observed. “Design brings those voices together,” she continued. “We iterate and iterate until we get it right … Our training (compared to police) leads us to do very opposite things.”

    Matthew Redle, prosecuting attorney in Sheridan County, Wyo., and immediate past chair of the ABA Criminal Justice Section, raised the cooperation among the various stakeholders. His section sponsored the 2017 policy that urged law enforcement authorities to develop Miranda tools beyond Spanish, and it has also helped to fund the project.

    Redle praised the “thoughtfulness that has been exercised” to develop a “product at the end of the day that is not going to create more problems than it necessarily solves.” He believes the current tools do that.

    Moderator Melba Pearson of the ABA Center for Innovation and ACLU of Florida observed that the “civil rights impact of this project is immeasurable” to allow non-English speakers detained by law enforcement to better understand options they have that can impact their lives.

    Although the tools are still being tested, Sandifer looked to be a true believer. He said he was headed to the FBI Academy in Quantico, Va., for a program with 85 deputy chiefs and that he will be touting the ABA initiative.

    “We learn from our past mistakes,” Sandifer said of police departments, “and we learn best from each other.”


    Eric Holder sees “brighter future” as he accepts ABA Thurgood Marshall Award

    August 5, 2018 10:59 AM by glynnj

    In accepting the Thurgood Marshall Award from the American Bar Association for his long-term contributions to the advancement of civil rights, civil liberties and human rights in the United States, former U.S. Attorney General Eric H. Holder, Jr., didn’t say he was running for president, but he certainly sounded like he was.

    Holder, who is on record saying he’s considering a run and will make a decision sometime early next year, received the award at the Thurgood Marshall Award Dinner on Saturday night, during the ABA Annual Meeting in Chicago. Robert Weiner, chair of the Section of Civil Rights and Social Justice, said the award recognized Holder for his “unflagging devotion to fairness and integrity in the justice system, for his defense of the core right to vote and for his continuation of the work that Thurgood Marshall advanced.”

    After thanking the ABA for recognizing his work and deeming him “fit to accept this recognition that my work in some small way exemplifies even a fraction of the contribution to society that Thurgood Marshall made over the course of his storied career,” the nation’s first African-American attorney general launched into what could have been a presidential stump speech.

    “I believe that we are today engaged in a struggle for the soul of our nation. This nation has faced trying times before and has always remained ultimately true to our founding ideals,” said Holder, currently a partner at Covington & Burling LLP in Washington, D.C. “Some of the pillars of our democracy – the judiciary, the media, our law enforcement – are under spurious but potentially effective attack. Now, as it was in Thurgood Marshall’s time, those who have the capacity to shape the law have the responsibility to use that power to stand up for and to defend the institutions that are the foundation of this republic.

    “Now we as lawyers must join the movements that have sprung up all around us and we must lead these movements. This is not a time for despair, this is a time for action,” he continued.

    “I see a brighter future and the courage and commitment of ordinary people doing extraordinary things nationwide. Americans of all ages, races and backgrounds who refuse to give in to fear and frustration, who resist truly shameful attempts to exploit and divide the American people, who are keeping up the fight for the safety and civil rights of all.

    “I see a brighter future in people who take to the street and to the offices of their elected leaders.

    “I see a brighter future in the example of those who in the wake of the senseless tragedies in our school shootings have found their own young voices in calling for solutions that respect our forebearers, our law enforcement community and our legal system while prioritizing our most precious resources – our children.

    “I see a brighter future in those who have raised their voices in protest of the inhumane and un-American separation of children from their parents along our southern border.

    “I see a new and better America.”

    Holder challenged the room full of lawyers, judges and law students to take up the mantle of Thurgood Marshall.

    “Today, as in the past, it is incumbent upon lawyers to stand for that which defines America at its best,” he said. “As a profession, we have great power. But with that power comes enormous responsibility. At this moment when the American system is being tested, we cannot take our democracy for granted. It is fine to be frustrated with our government and to be dissatisfied with the status quo. I know that I am. Yes, our union is not perfect but with the help of all of you in this room tonight it must become so. I am optimistic that the greatness of this country lies in the future that we will define and not the past that some create in their mind’s eye.”

    Holder said that Dr. Martin Luther King was correct in his statement that that the arc of the moral universe is long and bends toward justice. “But it only bends towards justice when people like you, comfortable people, put their hands on the arc and pull it toward justice,” he said. “I look forward to working with all of you in the months and years to come so that we can strive for what I think is possible, a truly better America. We can do this. We can make this country better.”

    Holder served as the 82nd attorney general from February 2009 to April 2015 under President Barack Obama. He was the third-longest serving attorney general in U.S. history.  As attorney general, he initiated reforms of the criminal justice system and re-invigorated enforcement of civil rights laws.

    The keynote speaker for the dinner was Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, which was founded in 1940 under the leadership of Thurgood Marshall.

    She, too, said there is much work to be done by civil rights lawyers at a time when the rule of law is under attack and “when we are at a time of profound danger in our country.”

    “It is true,” Ifill said, “that our democratic ideals and institutions are under attack like never before in my lifetime. And the role of civil rights lawyers at such a time as this will be critical and are critical to our survival as a democracy.”