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February 07, 2023 Top Legal News of the Week

ABA adopts policy urging ethics code for U.S. Supreme Court

The American Bar Association House of Delegates approved a host of new policies on Feb. 6, including for the first time endorsing both a binding code of judicial ethics on justices of the U.S. Supreme Court and “reasonable and appropriate” federal government efforts aimed at combating money laundering.

The ABA's policymaking body acted on a range of key policies to conclude the 2023 Midyear Meeting in New Orleans.

The ABA's policymaking body acted on a range of key policies to conclude the 2023 Midyear Meeting in New Orleans.

The action by the 591-member policy-making House, known as the HOD, concluded the six-day ABA 2023 Midyear Meeting in New Orleans and included adoption of policies in a range of legal areas, including criminal justice, international relations, wildlife protection, medical rights and anti-bias and discrimination.

The Supreme Court policy urges the high court to adopt a binding code of judicial ethics for its justices that is comparable to the code of conduct for other U.S. judges adopted by the Judicial Conference of the United States. Advocates of the change say the absence of a clearly articulated, binding code of ethics for members of the country’s highest court imperils the legitimacy of the court as well as the judicial system. Opponents argued that the proposal was only developed two weeks ago, and more time should be spent on studying the issue.

But proponents prevailed on an overwhelming voice vote. “It’s high time to set (a code of conduct),” said law professor Stephen Saltzburg during the debate. “The Supreme Court should have a code of ethics. Exclamation point. The end.”

The new anti-money laundering policy seeks to balance law enforcement authorities’ need to access information about those who own or control companies as a tool to fight illicit financial activities with lawyers’ ethical obligations to preserve client confidentiality and the longstanding attorney-client privilege. It follows a lengthy review by an ABA working group and recognizes efforts by Congress, which has passed legislation to combat such criminal activity.

The new policy endorses governmental measures requiring business entities to report their beneficial ownership but also requires that any such measures comply with fundamental principles that protect constitutional rights and confidentiality interests, and not conflict with the ethical duties, professional conduct requirements and regulations imposed on the legal profession by state supreme courts or rules of professional conduct.

Separately, the HOD rejected a proposal by the ABA’s independent law school accrediting arm to remove the standard that requires most incoming law students to have a “reliable and valid” admissions test. But the Council of the ABA Section of Legal Education and Admissions to the Bar could bring the resolution back to the HOD. Under ABA rules and procedures, the council has the last word on any changes to accreditation standards.

The HOD also approved several policies related to criminal justice matters, including the Ten Principles to Achieve Gender Equity in the Criminal Legal Profession, and another measure to improve the treatment of persons living with dementia who are involved in the criminal justice system.

Other new ABA policies include:

  • With a rise in violence and other incidents directed at members of the Jewish faith, the HOD approved a resolution that for the first time condemns antisemitism and proposes certain measures to combat it.
  • Support for rules and regulations that would make it unlawful for any person, other than law enforcement, to possess firearms on property owned, operated or controlled by any public or private institute of higher education, as well as for rules that would allow colleges and universities to restrict or regulate the concealed or open carry of firearms on their campuses if the law permits it now.
  • Condemnation of the “unlawful” invasion of Ukraine by Russia while urging  the Russian Federation to respect the law of war and immediately cease hostilities.
  • A measure seeking a protocol to the United Nations Convention against Transnational Organized Crime to end “wildlife crime,” which the ABA says is needed because the absence of a global agreement constrains efforts to effectively prevent and combat wildlife crime, such as poaching, smuggling, breeding and trapping.

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