August 04, 2020

ABA House concludes historic meeting after adopting robust list of new policies

The American Bar Association House of Delegates adopted nearly 60 new policies at its two-day meeting Aug. 3-4, including a resolution that urges state lawyer-licensing authorities to make public health issues paramount for upcoming bar exams and provide options for recent graduates who cannot take the bar.

The HOD, as the 597-member group of state, local and specialty bar associations is known, met virtually because of the COVID-19 pandemic to conclude the 2020 Virtual ABA Annual Meeting, which began July 29. Among the resolutions adopted as policy are several aimed at improving police-community relations and attacking racial injustice, including a measure urging the curtailment of the defense of qualified immunity in civil suits brought against law enforcement officers.

With attention focused on police misconduct in the wake of the May 25 homicide of George Floyd and other police incidents, the HOD adopted Resolution 301A, which urges governments to limit the doctrine of police qualified immunity that was expanded during the past 40 years by the U.S. Supreme Court. Also, the House approved Resolution 116A, which asks governments to enact laws that require law enforcement agencies to keep records of incidents of deadly force or excessive non-lethal 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.

The bar exam resolution, 10G, was adopted by a 256-146 vote. It asks the highest court or bar admission authority in each state or other licensing jurisdiction to cancel or not administer in person the examination during the COVID-19 crisis unless cleared by public health authorities. The resolution offers several alternative approaches to the bar exam, including a diploma privilege during the crisis. But, it does not favor any specific option.

Across the country, state and other lawyer-licensing authorities made individual decisions on how best to approach the past July 2020 bar exam, and others are planned in the next few months. The bar exam is prepared by the National Conference of Bar Examiners (NCBE) and is administered independently of the American Bar Association and the ABA Council of the Section of Legal Education and Admissions to the Bar, which is sole national accreditor of U.S. law schools.

Proponents of the resolution said it was necessary to convey support for newly minted lawyers who are faced with taking the bar amid a pandemic, and that the recommendation merely suggests that licensing authorities examine various options. Opponents, who included the NCBE delegate, said the sponsors only made them aware of the proposal on the eve of the HOD meeting, and they took issue with its reference, citing diploma privilege as an option without fully exploring its implications. Their attempt to postpone debate failed by a wide vote.

Among several COVID-19-related new policies, the House adopted Resolution 10H that recommends governmental policies that minimize evictions and assist both landlords and renters faced with hardship because of the pandemic. Also, Resolution 117 recommends, among other aspects, that individual parties in court cases be offered a safe “in person hearing or delay” if the health crisis continues.

In other business, the HOD adopted:

  • Resolution 111A, which establishes the ABA Best Practices for Third-Party Litigation Funding as policy. It is intended to serve as a guide for lawyers new to the practice of third-party litigation as well as more experienced attorneys and recommends that lawyers who engage in third-party financing 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. It does not take a position on the use of the practice, which has ballooned into a major industry in the past few years.

  • Two new policies that urge appropriate governmental entities to allow those incarcerated to vote. 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 100B, which 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.

  • 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, either on a contingency fee or through a clinic on a pro bono basis, would be allowed to provide modest gifts, including for food, rent, transportation, medicine and other basic living expenses.

  • Resolution 114, which urges that all national governments observe, respect and protect the independence of the International Criminal Court, a global judicial body. The new policy also condemned threats by governments to the ICC and its officers and personnel in the performance of their duties.

  • Resolution 301B, which supports establishment of June 19, or Juneteenth, as a paid, national legal holiday to commemorate the end of slavery.

The disposition of all HOD resolutions for the 2020 Annual Meeting can be found here.