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    Bad online review? ABA TECHSHOW experts advise next steps

    March 13, 2018 1:59 PM by glynnj

    You’ve gotten a negative review from a client – and even worse, when you Google your name, that feedback appears near the top of search results.

    What do you do next?

    Your first instinct may be to immediately respond the moment you see the review. But – two seasoned attorneys on the frontlines of advising lawyers on the ins and outs of online marketing disagree. Responding in the heat of the moment is the last thing you should do.

    Speaking at a March 8 program, “The New Word of Mouth: Lawyer Ratings and Reviews,” during ABA TECHSHOW 2018, the founder of the digital legal marketing firm AttorneySync, Gyi Tsakalakis, and solo practitioner Erin Gerstenzang of EHG Law Firm, advised attendees on dealing with negative client feedback online.

    According to Gerstenzang, lawyers are particularly bad at dealing with such feedback. “It’s part because we think we’re great at these adversarial situations – ‘I’m a courtroom lawyer, this is what I was trained to deal with. Somebody is attacking me personally and I can handle it,’” she said. But, “For the same reasons we are not supposed to represent ourselves in court, we are never qualified to respond to a negative review about ourselves – because it is too personal, it is too painful and inevitably we end up doing the wrong thing.”

    Case in point: Betty Tsamis. “She was one of the first attorneys to get into trouble for responding to a negative review,” said Gerstenzang.

    Tsamis received bad feedback from a client on Avvo. Feeling unfairly targeted and misrepresented, Tsmais fired off an emotional response after failing to get the platform to remove the review.

    Tsamis’ comeback led to a disciplinary complaint because her response revealed confidential information about the case. According to her attorney, Tsamis did not violate the Rules. “[The] public feels entitled to slander a lawyer and they don’t realize they’ve blown privilege when they do so,” said Tsamis’ lawyer, as told by Gerstenzang.

    But “privilege and confidentiality are two very separate things,” explained Gerstenzang. “When you are sued for malpractice or when you find yourself in a disciplinary complaint setting – what the Rules call a formal tribunal – you are allowed to speak about the specifics of your case.”

    “Unfortunately for Betty, and for the rest of us lawyers, online reviews are not a public tribunal…You cannot discuss the facts of your case,” said Gerstenzang, citing Model Rule 1.6 [Confidentiality of Information].

    So how should lawyers handle these reviews if they’re not responding themselves?

    According to Gerstenzang, after a cooling-off period, attorneys should turn to someone else they trust. “You need to go to your trusted advisor and have your friends or your colleagues write your response for you.”

    Together with an advisor, lawyers can better craft suitable responses that are devoid of unnecessary emotion.

    A good response is one that acknowledges the experience of the client. “Own your mistakes – ‘I’m sorry you had this experience,’” said Gerstenzang.

    Gerstenzang cited Disney’s rules of customer service as a reference for the response. The company’s first two rules: listen and apologize.

    “For lawyers, listening and apologizing are not our strengths,” admitted Gerstenzang. However, “Almost 90 percent of the time, all the problems that come up will be resolved if you listen (and your client is heard) and you apologize.”

    You may be upset about the lack of context in these negative reviews, but refrain from saying too much, particularly about outcomes, which can be complex, difficult to describe succinctly and often subject to misinterpretation, Gerstenzang said.  “You are not in a tit for tat. You are not going to debate the merits of the review,” she explained. Remember: “you are not just talking to that client… you are talking to all potential clients.”

    Some of the best responses are ones where lawyers communicate that they want to right what’s wrong, signaling that they care about their clients. “And that’s all we really want from the attorneys we hire,” said Gerstenzang.

    Gerstenzang and Tsakalakis also advised attendees to check out the rules of the review sites. “Get to know the different guidelines of the different sites because certain sites have guidelines where you can actually get the platform to remove the reviews,” said Tsakalakis, noting that it may be a particularly effective strategy when dealing with anonymous feedback.

    For some, it may be tempting to bury their head in the sand and try to just ignore the reviews that are out there.

    But Gerstenzang and Tsakalakis said that’s one of the biggest mistakes lawyers can make.

    Citing statistics from a recent Harris survey, Tsakalakis revealed how powerful it can be to respond. “Of customers who received a response from a company after negative feedback….33 percent turned around and posted a positive review, and 34 percent deleted their negative review.”

    “An acknowledgement of the issue and having some empathy for the client goes a really long way,” Tsakalakis said.

    Gerstenzang explained the urgency in more pressing terms: “This is a new era. This is the new world of running a business and being a professional,” she said. “Whether we like it or not, the internet will find us and talk about us. So, the question is, do we want to be in the driver’s seat and have some influence on that or do we want it just to happen to us?”

    For more than 30 years, ABA TECHSHOW has brought lawyers and technology together for an annual conference and expo.  The three-day event is produced by the ABA Law Practice Division.


    Lawyers especially vulnerable to cyberbreaches, official says at ABA breakfast

    March 9, 2018 4:24 PM by glynnj

    Whether they realize it or not, lawyers are on the front lines when it comes to protecting the United States from cyber threats, according to Spencer Fisher, who spoke at a March 9 breakfast meeting sponsored by the ABA Standing Committee on Law and National Security.

    Fisher, who is senior counsel for the National Counterintelligence and Security Center, supports the counterintelligence and security activities of the U.S. intelligence community, the U.S. government and the private sector at risk of attack by foreign adversaries.

    “The foreign intelligence threat is one of the most significant threats facing our country,” Fisher said, noting that much of the threat comes from Russia and China – but also from nations with lesser capabilities and potentially more disruptive intent, as well as from profit-motivated criminal enterprises both here and abroad and other hackers and terrorists.

    While one of the most high-profile recent breaches involves the U.S. electoral system, it’s not just the government and its infrastructure that is being threatened – but proprietary information from U.S. companies, too.

    Law firms are rich targets for hackers and have been victims of cyberattacks, notably the 2016 hack of the Panamanian firm Mossack Fonseca, which resulted in the release of 11 million confidential documents.

    “If you think about these examples from our adversaries’ perspective, which is what trained professionals are told to do, lawyers are an opportune and inviting target,” Fisher said. Lawyers acquire and retain vast quantities of their clients’ data, and they have practice areas that cut across many different industries – and are typically not experts in IT or cyber.

    For too many law firms, security is a secondary concern. A recent assessment of law firm cybersecurity concluded that 40 percent of the surveyed law firms had experienced a data breach in 2016 but did not know it had occurred.

    As lawyers, it’s essential to safeguard personal, identifiable information and proprietary information obtained through discovery or from clients, so that this data does not end up in the wrong hands, Fisher said. “Nobody wants their firm to be associated with a major cyber breach.”

    There are several measures law firms can take, such as:

    • Develop data security plans that speak to all members of the firm so they know their roles in the event of a cyber breach

    • Prepare the workforce by continually educating employees on how to respond to cyberattacks, particularly phishing attacks, which are the cause of the majority of cyber intrusions

    • Engage outside IT security experts and conduct risk assessments on a regular basis, and use the results of these assessments to inform future activities.

    “These are just a few of the issues lawyers and firms [should] grapple with as we become allies in addressing threats to our national security and our infrastructure,” Fisher said. 


    Deputy AG Rod Rosenstein tells ABA meeting that history will show ‘Department of Justice operated with integrity’

    March 5, 2018 2:30 PM by glynnj

    Deputy Attorney General Rod Rosenstein, who like his boss, Attorney General Jeff Sessions, has been publicly criticized by President Donald Trump, defended the Justice Department’s leadership during a speech on March 2 at the ABA Criminal Justice Section’s 32nd Annual National Institute on White Collar Crime in San Diego.

    “You will not always agree with our policy decisions, and you definitely won’t hear this on cable TV, but the department leadership team appointed by President Trump is very strong on ethics and professionalism. History will reflect that the Department of Justice operated with integrity on our watch,” Rosenstein said in a prepared statement.

    His speech came two days after President Trump blasted Sessions on Twitter for instructing Justice Department Inspector General Michael Horowitz to investigate the FBI’s activities surrounding surveillance of former campaign adviser Carter Page starting in late 2016, and on the heels of a Washington Post story that said President Trump privately refers to his attorney general as the cartoon character Mr. Magoo.

    Rosenstein himself has not escaped the barbs of the president, who in news reports has called the deputy attorney general “weak,” a “threat” to his presidency, and last month asking Rosenstein if he was “on my team.”

    Rosenstein, who said he began attending the white-collar seminars 27 years ago, said it was good to be in San Diego. “First of all, this is just about the farthest you can get from Washington, D.C., without leaving the continental United States,” he joked. “It is good for the soul to spend time beyond the Beltway,” he said.

    Rosenstein, who was sworn in as the nation’s 37th deputy attorney general in April 2017 by Sessions, said he has served under nine attorneys general during his varied career at the Justice Department. “They taught me that the Department of Justice stands for the principle that every American deserves equal protection under the rule of law,” he said. “Our friends deserve it, and our enemies deserve it. They deserve it whether they are innocent or guilty. They deserve it whether they are rich or poor. They deserve it whether they are Republican or Democrat.”

    “That requires us to be faithful to the pursuit of truth,” he continued. “For lawyers, truth is about credible evidence, not strong opinions.... People who seek the truth need to avoid confirmation bias. They must remain open to the possibility that the truth may not match their preconceptions. Pursuing truth means always yielding to the facts, even if they run contrary to our expectations.”

    Rosenstein said that federal prosecutors exercise great care before alleging wrongdoing. He said the judicial officer must be concerned about what is legal. “What is right is a matter of personal opinion,” Rosenstein said. “What is legal is an objective issue of fact and law.”

    Government officials who exercise discretion, he said, have a special obligation to make the right choice. “That requires experience, good judgment and wisdom.”

    Rosenstein said he’s keenly aware that “controversy is part of the job” of being an attorney general and that mistakes will be made along the way. However, he said he pledged not to repeat any of the mistakes of previous department officials and that he now tries to pass that wisdom on.

     “The rule of law is not just about words on paper. Any nation can write a good Constitution and adopt reasonable laws. The question is whether people will faithfully implement them. So, the rule of law depends on the character of the people who enforce the law.”

    Rosenstein said that what you hear about on the news is a very small fraction of the work performed by the DOJ’s 115,000 employees.

    “As I reflect on the accomplishments of the Department of Justice over the past year, I am proud of the remarkable dedication of our attorneys at Main Justice and the 94 United States Attorney’s Offices, of our FBI and other law enforcement agents and of the support staff and professionals who make our work possible,” he said, noting fraud convictions of 234 individuals by the DOJ in 2017. “We are aggressively pursuing crimes that pose imminent dangers, including terrorism, gang violence, drug trafficking, child exploitation, elder abuse and human smuggling.  And we remain steadfast in combatting financial and economic crime.”

    Rosenstein concluded his speech by noting that principled disagreement is essential in a democracy.

    “In a time of strong political passions, lawyers have a special responsibility to demonstrate why law and logic are essential to the peaceful resolution of disputes,” he said.

    The annual three-day gathering of the ABA’s national white-collar bar brings together more than 1,200 leading federal and state judges and prosecutors, law enforcement officials, defense attorneys, corporate in-house counsel and members of the academic community. This year’s lineup of speakers included a keynote speech by David Green, director of the UK’s Serious Fraud Office, and presentations from 13 federal trial and appellate judges.


    FAA official says “regulatory humility” is key to navigating new aviation landscape

    February 27, 2018 4:48 PM by glynnj

    Speaking at the American Bar Association Forum on Air and Space Law’s 2018 Update Conference, Charles M. Trippe Jr., chief counsel for the Federal Aviation Administration said, “Aviation is changing profoundly before our very eyes.”

    FAA Chief Counsel Charles M. Trippe Jr. addresses the ABA Forum on Air and Space Law’s 2018 Update Conference

    Trippe said that it’s not just the hardware and software of the industry that is changing, but the culture of aviation itself.

    One hundred years ago aviation was primarily the domain of a small, privileged group of pilots and controllers who had “studied and toiled long and hard” to learn their craft. “Today anyone with $500 to spend at Best Buy can become a pilot in a relatively short order of time, with remarkably little training,” Trippe said, referring to the growing popularity of drones, both among hobbyists and commercial entities.

    That popularity is only expected to grow. According to the recently published FAA Aerospace Forecast, there are about 2.5 million drones already in use in the United States, and that number is projected to nearly triple by 2020, with about 7 million active drones flying over our skies. “We are charged with bringing a sense of order and discipline to this new and greatly expanding aviation culture,” the chief counsel said of the FAA.

    While the new technologies offer many benefits, there are also safety concerns, with a growing number of drones in safety-related incidents with other aircrafts, including collisions. Also, use of such drones and their cameras have raised privacy concerns. And, there are worries that the technology could be used as part of terrorist attacks.

    “It’s only the contributions from across the industry, economy and all levels of government that we will solve the complicated riddles posed by unmanned aircraft systems and other issues confronting us in this new area of innovation.” Trippe told the audience of fellow attorneys.

    To regulate effectively in this day and age, the FAA must listen to and learn from the people who are working in the field, Trippe said. “By continuing to listen to each other and work together, the FAA and its industry partners can maintain strong communications and a mutual respect that is necessary to keep aviation safe and efficient.”

    Trippe said he calls this “regulatory humility.”

    “I think it is an apt description – one which should help bring our approach to regulation in this time of innovation and rapid change. He urged audience members to “consider your role in aviation with this in mind.”


    Legal profession and technology to merge at ABA TECHSHOW

    February 21, 2018 12:18 PM by glynnj

    The American Bar Association Law Practice Division will host TECHSHOW 2018, March 7-10 in Chicago. ABA TECHSHOW is where lawyers, legal professionals, and technology all come together. For three days, attendees learn about the most useful and practical technologies available. This year will be no exception, with more than 60 sessions in 16 different tracks covering the latest in blockchain, cybersecurity, modern e-discovery and the latest trends in legal technology.

    TECHSHOW 2018
    Sponsored by the ABA Law Practice Division

    March 7-10, 2018

    Hyatt Regency Chicago
    151 E Upper Wacker Drive
    Chicago, IL 60601

    The keynote speaker will be Daniel Martin Katz, an associate professor of Law at Illinois Tech–Chicago, on Thursday, March 8, from 1-2 p.m. Katz, a scientist and technologist, will offer a provocative view of the near future: how lawyers should embrace innovation and these new technologies if they want to achieve greater professional success or merely ensure their economic survival.

    Program highlights include:

    “AI in Practice – Or, the Robots are Not Your Enemy — Artificial intelligence is impacting the way law is practiced and how law firms operate. Hear the experts discuss the current state of AI in the legal industry — where it is already in use, where it might go in the future, and how AI can be leveraged in law practice today. Thursday, 2-3 p.m.

    “Mentoring Women and People of Color in Legal Tech” — The legal technology field is not immune to the lack of diversity found in the profession. Mentorship is essential to the success of young women and people of color entering this field, but forming these relationships can be difficult because most potential mentors have not faced similar challenges. This session will discuss how law schools can develop mentoring models for women and people of color in the legal technology arena. Thursday, 2-3 p.m.

    “Lawyers and Leads: How to Effectively Develop Business” — Most attorneys cringe at the word “sales,” but to be successful at business development, you need to understand how to sell your services. This session will focus on capturing, tracking and following up with “leads” in the digital age. Panelists will also discuss the use of chatbots, text messaging, lead buys, automation and more to help you to ethically close the deal with new clients. Thursday, 4-5 p.m.

    “Effective Security Awareness Training for Law Firm Personnel” — Phishing and social engineering scams are pandemic, as criminals increasingly target law firms to access financial accounts or hold your data for ransom. Education is your first step in an ethical approach to protecting against common cyberattacks, and helping employees to become a part of your “human firewall.” Learn how attackers penetrate firm defenses, and how to implement an effective cybersecurity awareness program with videos, realistic phishing tests and more. Friday, 3-4 p.m.

    “Alternative Fees for the Process-Oriented Firm” — Now that your consistent, repeatable processes help you to achieve better outcomes more efficiently, it’s time to start thinking about alternative fee options for your clients. Alternative fees help you to capitalize on your process improvements, because you’re no longer wasting time on routine tasks. Also, learn more about the different types of AFAs and when they might make sense for you. Friday, 3-4 p.m.

    “Think Before You Tweet: Ethical Issues in Social Media” — More lawyers are using social media to market their practices. Remember, though, the duty of technological competence also extends to social media. What you tweet, post or publish is as discoverable in litigation or ethics investigations as emails, public statements and electronic documents. Our experts will discuss the rules and guidance on the ethical use of Twitter, Facebook, LinkedIn or even your own blog. Saturday, 9:15-10:15 a.m.

    A complete agenda of the program can be found online.

    This event is open to members of the press. For media credentialing, please contact Robert Robinson at

    ABA accreditor for law schools recommends expanding distance learning opportunities

    February 12, 2018 12:12 PM by glynnj

    The Council of the Section of Legal Education and Admissions to the Bar, the American Bar Association’s accreditor of law schools, is proposing a new rule for distance education that would nearly double the number of credits law students can earn in distance learning courses before graduating.

    Under the proposal, Standard 306, which concerns distance learning allowed in J.D. programs, would change from an absolute number to a percentage of whatever credits a law school requires for graduation. If adopted, law schools could allow one-third of its required credits be taught online. The current rule limits the number of such credits to 15.

    ABA standards now require at least 83 credit hours for graduation although most schools require more, with the usual range being between 86 and 90 credits. As proposed, the revised standard would effectively raise the number of credits for distance learning to at least 28 credit hours and, in many cases, 30 credit hours. Those courses would continue to be subject to other requirements of the standards.

    In addition, the proposal would change the current standard’s prohibition on distance learning courses in the first year and allow a school to include up to 10 credits of online courses in the required 1L curriculum.

    The proposal would retain the current provision that a course does not become a distance learning course for counting purposes unless more than one-third of the work in the course is done online. Law schools could still be granted variances for more extensive online learning. Currently, three law schools have been granted variances for experimental distance learning programs – Mitchell Hamline School of Law, Southwestern Law School and, during the closed session of this council meeting, Syracuse University College of Law. To date, only Mitchell Hamline has enrolled students in its program.

    The council approved the plan at its meeting in San Antonio, Texas, on Feb. 9, and put revised Standard 306 out for Notice and Comment. This and other proposed changes to ABA legal education standards will be the subject of a public hearing April 12 in Washington, D.C. The council then meets in May in Washington and could finalize proposed changes. The final proposal would then go to the ABA House of Delegates for its concurrence in August

    Pamela Lysaght, chair of the council’s Standards Review Committee, which recommended the online learning change, said the revision would “provide schools more flexibility.”

    The council also approved several other measures, including keeping the current form, with minor modifications, of how it reports employment outcomes for the nation’s 204 ABA-accredited law schools. This is considered important for prospective students concerned about employment opportunities after graduation, particularly at a time of high law school debt. AccessLex Institute, a nonprofit organization that studies legal education, pegs the average debt faced by a new law graduate at about $100,000 for public law schools and above $125,000 for private schools.

    The form, one of four options considered by the council, leaves intact how law schools now report employment data of their past graduating class – 10 months after graduation. This includes law-school funded jobs, which will be separately reported.

    In other matters the council:

    • Approved new language for Rule 53, one of several rules that cover confidentiality of the accreditation process. The revised changes will also be posted for Notice and Comment, with the intention of sending the changes to the ABA House of Delegates at the ABA Annual Meeting in August, should the council finally approve the changes at its meeting in May.

    • Received an update from council chair-elect Jeff Lewis, dean emeritus and professor at Saint Louis University School of Law, and Managing Director Barry Currier regarding proposed changes in the structure of the council’s operations, principally to streamline the work of the council and to realize substantial cost savings. Under the outlined scenario, the council’s Standards Review and Accreditation committees would be phased out later this year, with their work being returned to the council. Also, periodic re-accreditation of the nation’s law schools, including site visits to those schools, would occur every 10 years rather than seven years. Depending on whether the changes affect bylaws or standards, the change would have to be approved by either the ABA Board of Governors or the House of Delegates.

    • Heard several reports from affiliate groups, or other stakeholders in the legal education arena. Representatives from the Law School Admissions Council reported “positive trends” in law school applications of up more than 10 percent from a year ago at this point in the admissions cycle. Also, officials with the American Association of Law Schools reported that findings from their broad study, “Before the JD,” could be ready this summer. The survey, done in collaboration with the Gallup organization, involved 25,000 college undergraduates and 2,500 first-year law students. The study seeks to provide a deeper understanding of the factors contributing to the intention/decision to pursue a J.D. degree.


    The council’s open session agenda, including reports and memorandums, can be found here. The council is an independent arm of the ABA and is recognized by the U.S. Department of Education as the national accreditor of law schools,

    ABA adopts new policy to combat sexual harassment in the legal workplace

    February 5, 2018 8:34 PM by glynnj

    The American Bar Association’s policy-making body is urging employers in the legal profession to prohibit, prevent and promptly redress sexual harassment and retaliation claims, including adopting measures to ensure that the heads of law firms be informed of financial settlements to resolve claims.

    The new policy, approved by the House of Delegates, was embraced Monday, Feb. 5, the final day of the ABA Midyear Meeting in Vancouver, B.C. Altogether, the 601-member House approved nearly three dozen resolutions that included recommendations to expand access to the courts, limit use of mandatory sentences, encourage more attention to lawyer health and well-being and improve civil rights protections for Americans, particularly on the basis of sexual orientation and gender identity.

    The ABA House of Delegates convenes at the Midyear Meeting in Vancouver

    The House meeting was its first since the #MeToo movement gained steam in October 2017 after revelations of sexual harassment in the workplace began to rock the entertainment, media and political establishments. Resolution 302, expanding ABA policy dating to 1992, sets forth new components for enforcing policies and procedures prohibiting harassment and retaliation in the workplace based on gender, gender identity and sexual orientation. It was praised by advocates as long overdue.

    “There can hardly be a resolution more timely than 302,” said Stephanie Scharf, chair of the ABA Commission on Women in the Profession, the resolution’s chief sponsor.

    Before final approval, the resolution was strengthened through an amendment from Mark Schickman, an employment lawyer in San Francisco, who said his group of changes was to take “good product and make it a much better product.”

    Gene Vance, a Kentucky delegate, observed that “this resolution is not primarily about women. It is primarily about men. Men have an obligation to end this now. … Men must say, ‘time’s up’.”

    The final voice vote was unanimous.

    While the bulk of the House resolutions passed without opposition, two were approved by split votes. Resolution 103A grants accreditation to the privacy law program of the International Association of Privacy Professionals for a five-year term as a designated specialty certification program. ABA Business Law Section representatives opposed the measure, cautioning that the concept of privacy law is too broad for a specialization. Separately, Resolution 101A urges federal courts, Congress and the U.S. Patent and Trademark Office to adopt rules to allow “an evidentiary privilege” – or confidentiality with clients – to patent agents, who might not be licensed lawyers.

    In other action, the House adopted:

    • Resolution 114, which expands on ABA policy first adopted in 2006. The measure urges that low-income persons in all proceedings that may result in a loss of liberty — regardless of whether the proceedings are criminal or civil or initiated or prosecuted by a government entity — be provided court-appointed counsel. The U.S. Supreme Court in Gideon v. Wainwright in 1963 provided the right to counsel in criminal cases. The resolution supports a concept known as “civil Gideon” and expands current ABA policy to reach “quasi-criminal” matters, such as contempt for failure to make child support.

    • Resolution 111, which urges jurisdictions that impose capital punishment to prohibit execution of any individual who was 21 years old or younger at the time of the capital offense. In 1983, the ABA became one of the first organizations to call for an end to using the death penalty on individuals under the age of 18, and in 1997 the ABA called for a suspension of executions until states and the federal government improved several aspects of their administration of capital punishment. But the ABA has taken no position on the death penalty per se.

    • Resolution 105, which calls for the various stakeholders in the legal profession to consider recommendations set out in The Path to Lawyer Well-Being: Practical Recommendations for Positive Change. The report, designed to shift the culture of the legal profession to emphasize more well-being of lawyers and law students, follows several years of renewed ABA attention on mental health and substance-use disorders in the legal profession.
    • Resolution 10A, which encourages law firms to develop initiatives to provide women lawyers with more opportunities to gain trial and courtroom experience. Sponsored by the New York State Bar Association, the resolution reflects growing concern in the legal profession that women are not gaining enough courtroom experience, contributing to a higher percentage of them leaving the profession.

    • Two resolutions aimed at assisting homeless youth, which is estimated to total some 1.5 million in the U.S. and nearing 100 million worldwide. Resolution 113 supports the development of systems to address legal needs of youth and young adults experiencing homelessness. Resolution 301 endorses General Comment No. 21 on Children in Street Situations issued in June 2017 by the U.N. Committee on the Rights of the Child.

    • Resolution 108D, urges federal, state and others courts to extend Batson v. Kentucky, a U.S. Supreme Court decision in 1986 that barred preemptory challenges of jurors based on race, to cover similar challenges on the basis of sexual orientation or gender identity/expression.

    Additionally, several measures approved by the House supported either reversal or limitations on policy initiatives or decisions by the U.S. Department of Justice (DOJ) or other agencies. These measures were:

    • Resolution 108E asks the Executive Branch to rescind its decision – now part of the overall immigration discussion in Washington ­– to end the Deferred Action for Childhood Arrivals (DACA) program, which affects several hundred thousand “Dreamers.” The ABA measure only focuses on the “Dreamers,” immigrants who were brought into this country illegally by their parents when they were children.

    • Resolution 108C urges DOJ to restore prosecutorial discretion in choosing the charges pursued against a defendant and to reserve mandatory minimum sentencing to only the most serious drug traffickers, in addition to prohibiting its use to secure plea agreements.

    • Resolution 116A supports an interpretation of a provision of Title VII of the Civil Rights Act of 1964 that prohibits sex discrimination in employment to include discrimination based on sexual orientation and gender identity. In October 2017, DOJ issued an interpretation that Title VII “does not prohibit discrimination based upon gender identity per se” after earlier filing an amicus brief in a case arguing similarly.

    A complete list of resolutions can be found here.

    New president-elect nominee vows to restore trust in justice system

    February 5, 2018 6:16 PM by glynnj

    Judy Perry Martinez, of counsel at Simon, Peragrine, Smith & Redfearn in New Orleans, became president-elect nominee at the ABA Midyear Meeting in Vancouver.

    A long-time active member of the ABA, Perry Martinez served 26 years in the House of Delegates and has been chair of the Standing Committee on the Federal Judiciary, the Presidential Commission on the Future of Legal Services and the ABA Commission on Domestic & Sexual Violence, among many other roles.

    ABA president-elect nominee Judy Perry Martinez addresses the House of Delegates at the ABA Midyear Meeting in Vancouver

    Noting that organizations in every sector are struggling with members demanding to know “the value of membership and how it will be delivered,” she called on the ABA to “reexamine our business model, drive greater operational efficiencies and rethink governance.”

    Currently serving as a special advisor to the ABA Center for Innovation, she said, “sound strategy compels us to innovate and embrace technology to attract the brightest of future generations.”

    Martinez also addressed the power of the collective voice of the ABA. “We must use that voice to trumpet the essential values of our democracy, so that practicing lawyers everywhere, and law students who will join our ranks, are proud to be members of the organization that stands up time and time again for the rule of law,” she said.

    Saying that the U.S. and the world are at a turning point, she said, “we the lawyers will lead by instilling in the public a renewed trust and confidence in our justice system.”

    “I pledge that with the collective voice, wisdom and courage of you—the leaders of our profession—this association will rise to a new zenith as it serves its members, defends liberty and achieves justice,” she vowed.

    ABA president: “Power” of ABA vital to problem solving, rule of law

    February 5, 2018 5:06 PM by glynnj

    The biggest takeaway Hilarie Bass has received from her international and domestic travels as ABA president has been “the power of the American Bar Association and the American legal profession that it represents.”

    ABA President Hilarie Bass speaks to the House of Delegates at the ABA Midyear Meeting in Vancouver.

    “How we utilize that power is more critical than ever before as more individuals and institutions need our help and our leadership,” she told the House of Delegates on Feb. 5 at the Midyear Meeting in Vancouver.

    “But that power is not to be taken for granted or misused,” Bass continued. “You, the leaders of this association, have the huge responsibility for nurturing the power of this association when called upon. Use it sparingly and definitively, in order to ensure that power will be available to protect and represent our profession for generations to come.”

    One area where the ABA used its power this year, Bass said, was to urge Congress to move forward with immigration and criminal justice reform, to lobby for full funding of the State Department and the continuation of rule of law programs throughout the world and to lobby against the adoption of accrual accounting for the legal profession.

    Bass pointed to ABA Legal Fact Check as an example of when “the leaders of the ABA will not stand by and say nothing when others challenge the legal principles on which our democracy is based.” The new website has posted entries on the facts behind such timely topics as the scope of executive pardons, the constitutional limits of free speech, foreign influence on U.S. elections and more.

    Lauding the work of the ABA Standing Committee on the Federal Judiciary, she said, “none of our work is more important than the peer reviews we continue to perform on judicial nominees being considered for lifetime appointments by the Senate Judiciary Committee,” and noted their work in completing reviews of more than 60 judicial candidates since last January.

    Other examples of the ABA “helping to change the paradigm” are in the work of two of Bass’ signature initiatives: Achieving Long-Term Careers for Women in Law, which will come before the HOD in August with specific recommendations, and Legal Needs of Homeless Youth. Of the latter, she said the ABA has long been recognized for providing leadership in the area of children. “There have only been two worldwide conferences on street youth, both of which were created, developed and implemented by the children and the law entities of the American Bar Association,” she said.

    Turning to the work of the Commission on the Future of Legal Education, Bass asked, “Does it make sense for some states to be testing law grads in certain states on as many as 27 different topics? Does it make sense to wait for a student to go through three years of law school before testing them on what they learned in their first semester and for them to discover that they are not going to be able to pass the licensing exam? Does it make sense for no one to have ever validated whether a high score on the bar exam equates to having better skills as a lawyer?”

    “No organization other than the ABA has the ability to drive the solutions and move for their adoption,” she said, adding that proposals will be presented at the Annual Meeting.

    She also pointed out the “great work” of the Task Force on Building Trust in the Justice System, which has focused on addressing the criminalization of poverty in the United States.

    While realizing the power of the ABA on rule of law issues at home and abroad, Bass said, “I have also been made keenly aware that our power can only be as strong as our organization itself.” She said the association needs to “evolve and adapt….Whether that means modifications to our dues structure, our sections’ structure or our administrative structure, we cannot stand idly by and expect that our association will continue to thrive and grow utilizing the same framework of operations that has been in place for decades.”

    In closing, Bass said, “To anyone who doubts the power of the rule of law, to anyone who questions the respect with which American lawyers are viewed throughout the world, to anyone who wonders whether the work of the American Bar Association is critical to our democracy and to the rule of law across the globe,” she invited them to join her on her travels to visit judges, homeless shelters, disaster relief centers “or any one of the other 50 countries in which the American Bar Association works every day to further the rule of law.”

    U.S. stands alone in North America on death penalty

    February 5, 2018 12:42 PM by glynnj

    Canada, Mexico have long abolished capital punishment as U.S. still grapples with issue

    No surprise. When you compare how the death penalty is imposed among North American countries, the United States is the leader in executions.

    But a closer look at the history and evolution of capital punishment in Canada, Mexico and the United States reveals some interesting realities.

    These differences were examined at the 2018 ABA Midyear Meeting in Vancouver during a program sponsored by the Criminal Justice Section titled, “A North American Perspective on the Death Penalty: The American, Mexican and Canadian Experiences.”

    Cassandra Stubbs, the director of the ACLU Capital Punishment Project, presented a detailed look at how both Mexico and Canada did away with capital punishment and how the U.S., after a brief abolition of the death penalty in the 1970s, still uses the practice, albeit much less frequently.

    Historically, the death penalty was used much less in Mexico. Between 1908 and 1961, Mexico had 11 executions. Canada put to death 710 people between 1542 and 1976. In the U.S. between 1608 and 1972, 14,489 executions were carried out. During 1931, a peak year for executions, the U.S. had 153 while Canada performed 22 and Mexico none. However, the rate of Canadian executions was greater (2.09 per million residents versus 1.23 per million in the U.S.).

    From the mid-20th century, capital punishment was still officially on the books in Canada and Mexico, although neither country carried out death sentences. In the U.S., executions are on the decline. In 2016, there were 2,902 people on death row, according to the Death Penalty Information Center. But there were only 20 executions carried out in the U.S. that year. There were 23 executions in 2017. The diminished use of the death penalty may be the harbinger of the abolition of capital punishment in the U.S.

    In Mexico, a predominantly Catholic country with a long history of abolitionism, public opinion has been against the death penalty for a long time. The Mexican constitution was officially amended to abolish capital punishment in 2005. In Canada, the death penalty was formally struck from the criminal code in 1976, when the House of Commons passed a bill doing away with it.

    In the U.S., it appears that if the death penalty is abolished officially, it will come through the Supreme Court. The death penalty was outlawed in the U.S. for a brief period after the 1972 Supreme Court decision in Furman v. Georgia. But it was reinstated after the 1976 decision in Gregg v. Georgia and it has been legal ever since.

    But a 2015 Supreme Court decision in Glossip v. Gross, where, in a 5–4 decision, the Court held that lethal injections using the drug midazolam did not constitute cruel and unusual punishment, may be a turning point. In his dissent, Justice Stephen Breyer argued that the death penalty was unconstitutional because it was unreliable, arbitrary, suffered from excessive delays and had, in effect, been abandoned by most of the country.

    There have been many studies highlighting the arbitrary and discriminatory nature of capital punishment in the U.S. While making up about 13 percent of the population, African-Americans account for 41 percent of death row inmates. The arbitrary nature is also geographic. Most executions have occurred in the South, Texas and Oklahoma. In fact, 31 percent of death sentences were handed down in just three counties — Maricopa County, Ariz.; Clark County, Nev.; and Riverside County, Calif.

    The large number of death row exonerations (159 since 1973 while executing 1,465 people) speaks to its unreliable nature. “We have seen a major shift in terms of international and national opinions about the death penalty as people have begun to realize that we exonerate an enormous number of people on death row,” the ACLU’s Stubbs said. “We are getting it wrong. We are sentencing people to death, when they are innocent, at a very high rate.”

    Delays in the average time it takes to carry out a death sentence have increased from two years in 1960 to nearly 18 years today. And while 31 states still have the death penalty on the books, only eight states have carried out executions in the past two years, bolstering the case of isolation. Death sentences also are declining, from a peak of 315 in 1996 to 39 in 2017.

    Being out of step with both our northern and southern neighbors on the death penalty has caused issues in the past few decades. Canada has refused extradition of people to the United States without assurances that the defendant will not face capital punishment. Mexico, which has 54 of its citizens currently on U.S. death rows, filed a complaint against the United States in 2003 at the International Court of Justice, alleging that the U.S. had violated the Vienna Convention by not allowing the Mexican citizens sentenced to death to get consular assistance.

    As the United States still grapples with the death penalty, it has become more of an outlier both in its hemisphere and in the world. There are still 58 countries in the world where capital punishment is legal. The U.S. is the only Group of Seven country that has it. While data on executions from countries like China and North Korea is difficult to gather, Amnesty International puts the U.S. behind only China, Iran, Saudi Arabia and Iraq in the number of executions over the past 10 years.

    While Canada and Mexico took different paths to abolishing capital punishment, the United States seems to be moving toward it through the courts.

    “The death penalty will die with a whimper,” Stubbs concluded. “States will realize it is too expensive and too failed and will just stop using it.”