January 14, 2019

House approves host of ABA policy changes, including misconduct rule, law student paid externships

The American Bar Association wrapped up its ABA Annual Meeting Aug. 9 with its House of Delegates adding tougher language to a professional misconduct rule, expanding financial opportunities for law students, and recommending enhancements to broaden diversity and inclusion in the legal profession.

During two days of deliberations, the association’s policy-making body tackled about 30 different resolutions, and none got more attention than a proposal to classify harassment or discrimination in the practice of law as professional misconduct. On Monday, the House resoundingly adopted by voice vote a revised resolution to strengthen the language of Model Rule 8.4 that addresses harassment and discriminatory conduct based on race, religion, sex, disability, LGBTQ status and other factors when such conduct is related to the practice of law.

The ABA Standing Committee on Ethics and Professional Responsibility, the resolution’s chief sponsor, noted that 25 jurisdictions across the country have adopted similar language to the Rule 8.4 revision. “It is time for the ABA to catch up,” Myles Lynk, chair of the committee, said in Monday’s debate.Previously, language covering such behavior was included in a comment to the model rule but was not considered as authoritative as specific language. ABA model rules, which support professional standards, serve as guides for state regulatory bodies that govern the legal profession; model rules carry no licensing authority per se.

On Tuesday, the House approved a resolution to require federal agencies to provide an online source to access material incorporated by reference into regulations. Approximately 9,500 federal agencies use these privately-drafted IBR rules, as they are called, in a range of areas from toy and crib safety to food additive standards. The proposal drew strong views, as opponents criticized the measure for thrusting the ABA into ongoing litigation while other critics said it did not go far enough in terms of disclosure – it provides IBR rules in a “read-only” basis. Proponents countered that the resolution offers a compromise and gives the ABA a seat in future conversations with Congress regarding these rules.

On Monday, the House concurred with a proposal from the ABA Council of the Section of Legal Education and Admissions to the Bar that would allow law students to get credit for externships for the first time. The voice vote came after a short, but spirited debate in which advocates said the change would assist students to offset the sometimes six-figure debt they incur over three years of law school.

In other matters over the two days, the House:

  • Urged state and local entities to abolish “offender funded” systems of probation supervised by private, for-profit companies. The use of these companies has attracted national attention and earlier this year the ABA filed an amicus brief to the Cincinnati-based 6th U.S. Circuit Court of Appeals in support of a group of Tennessee plaintiffs who were jailed because they could not pay their fees (111B).
  • Approved several resolutions geared to expand diversity and inclusion in the legal profession and make the justice system fairer to all. One urged the U.S. president and “appropriate parties” to recognize the importance of racial, ethnic, disability, sexual orientation, gender identity and gender diversity for the judiciary (102). Another called for all providers of legal services, including law firms and corporations, to expand and create opportunities for diverse attorneys and urges “clients to assist …and to direct a greater percentage of the legal services they purchase … to diverse attorneys (113). And for the first time the House urged federal, state, local and territorial law-enforcement authorities to provide an accurate translation of the Miranda warning protecting Fifth Amendment rights in Spanish (110).
  • Added “marital status,” “gender identity” and “gender expression” to language of existing policy that said jury service should not be denied or limited on the basis of race, national origin, gender, age, religious belief, income, occupation or disability. The expanded language, similar to that employed in California trial courts, is intended to tackle the implicit bias of jurors (116).
  • Passed a resolution supporting the independence of the judiciary and the legal profession. The resolution also called on the government of Turkey to adhere to a fair hearing before an impartial tribunal applying established legal principles before suspending or dismissing a lawyer or judge from the bar or a tribunal and to commit to protect basic values as human rights and freedom of speech (10B).
  • Urged legislative bodies to help eliminate the “school-to-prison pipeline” in which students of color, students with disabilities, LGBTQ students and other groups suffer disproportionately from inadequacies and inequities in the education system that contribute to their paths into incarceration (115).

The House is made up of 589 members representing state and local bar associations, ABA entities and ABA-affiliated organizations. Actions over the two days can be found here. For more details of Monday’s debate in the House, click here.

Watch video of the ABA House of Delegates' policy debates