CHICAGO, July 21, 2020 — The American Bar Association House of Delegates convenes early next month to conclude the virtual 2020 ABA Annual Meeting with about four dozen items on the agenda, including for the first time recommendations for best practices regarding third-party litigation funding.
The HOD, as the ABA policy-making body is known, meets Aug. 3-4 at the end of the ABA Annual Meeting, which begins July 29. In an unprecedented event, the 597 delegates from state, local and specialty bar associations will meet at 10 a.m. CT both days in a virtual session because of the COVID-19 pandemic.
Resolution 111A, offered by the ABA Section of Litigation, asks the delegates to adopt the ABA Best Practices for Third-Party Litigation Funding. Accompanied by a lengthy report, the proposal recommends that lawyers who engage in third-party financing should detail the arrangement in writing, include the non-recourse or restricted nature of the financing, ensure that the client retains control of the case and protect the attorney-client relationship.
Third-party litigation funding typically involves the practice of hedge funds and other financiers investing in lawsuits in exchange for a percentage of any settlement or judgment. In the past decade or so, it has ballooned into a global industry with media reports indicating the availability of a pool of as much as $100 billion. The best practices are intended to assist lawyers considering litigation funding – whether to provide legal fees for sophisticated, cross-border arbitration and litigation; to assist an individual plaintiff or claimant in a personal injury lawsuit or worker’s compensation claim; or any other litigation or arbitration context.
Delegates will also be asked to consider three proposals aimed at ensuring the integrity, fairness and efficiency starting with the Nov. 3 national elections. Resolution 101 adopts the ABA Election Administration Guidelines and Commentary and asks governmental entities to provide adequate funding to implement them. Resolution 116E recommends governments provide a process to allow eligible pre-trial detainees to obtain a ballot and be able to vote despite their detention. And Resolution 116H advocates for the repeal of laws that disenfranchise persons based upon criminal conviction and that voting rights be restored, without any requirements to fulfill financial obligations, for those currently and formerly incarcerated.
Resolution 109B would give the Council of the Section of Legal Education and Admissions to the Bar greater latitude to act quickly to address an emergency, such as the COVID-19 pandemic, to provide temporary relief from a rule or the requirements of a standard. The council acts as an independent arm of the ABA for the accreditation of law schools nationally, and the change would allow it to respond more quickly to emergency requests from law schools, such as seeking approval to offer more online classes.
With attention focused on police misconduct in the wake of the May 25 homicide of George Floyd and other police incidents, Resolution 116A asks governments to enact laws that requires law enforcement agencies to keep records of instances of deadly force, and that a fully independent prosecutor be appointed when an individual dies in the custody of or during an encounter with a law enforcement officer. Also, a separate late resolution is expected to be filed recommending changes in the legal doctrine of qualified immunity for police officers.
Other proposals include:
- At least two dealing with discrimination. Resolution 100B urges governmental bodies to enact legislation banning race discrimination on the basis of the texture, style or appearance of a person’s hair and encourages implicit bias training to eradicate discrimination based on these factors. The resolution comes in conjunction with a national movement that the interpretation that “race,” as included in antidiscrimination statutes, also include physical and cultural characteristics beyond skin color. Resolution 116G urges workers in law and medicine who work with the public to get implicit bias training.
- A narrow exception to ABA Model Rule 1.8(e), which bars financial support for clients. Under Resolution 107, a lawyer representing an indigent client would be allowed to provide modest gifts for food, rent, transportation, medicine and other basic living expenses if financial hardship would otherwise prevent the client from instituting or maintaining the proceedings.
- That all national governments observe, respect and protect the independence of the International Criminal Court, a global judicial body. Resolution 114 also condemns threats by governments to the ICC and its officers and personnel in the performance of their duties. In June, President Donald Trump signed an executive order that sanctions members of the ICC, which is investigating American troops for possible war crimes during the Afghanistan war. The ABA has policy supporting the ICC although the U.S. is not among the 123 state parties to the Rome Statute, which created the body.
- Two resolutions aimed at protecting the well-being and rights of youth. Resolution 115 encourages legal reforms that affect the fundamental rights of children and says this cannot be accomplished without active participation by individuals who experienced those systems as children and youth. Resolution 111B urges all federal, state, tribal, local and territorial governments to adopt policies and contractual provisions that prohibit strip searches of children and youth, except in exceptional circumstances.
- Recommendations for governments to employ a considered and measured approach to utilizing virtual or remote court proceedings established as a result of the COVID-19 pandemic. Resolution 117 also asks that jurisdictions study the impact of virtual or remote court procedures and take steps to halt, alter or revise them if shown to have a prejudicial effect or disparate impact on case outcomes.
For details on the nearly four dozen proposals and other matters for debate and vote during the two-day session, click here.
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