CHICAGO, July 25, 2023 — The American Bar Association’s policymaking body, the House of Delegates, convenes next month to conclude the 2023 ABA Annual Meeting with more than 50 items on the agenda, including a measure that strengthens the client-review obligations of attorneys and other resolutions focusing on timely legal and cultural issues.
The in-person only meeting in Denver begins on Wednesday, Aug. 2. The House, known as the HOD, encompasses 597 delegates from ABA entities and state, local and specialty bar associations. It starts its two-day meeting at 9 a.m. MDT on Monday, Aug. 7 at the Colorado Convention Center (Mile High Rooms 1-3).
U.S. Attorney General Merrick Garland will speak to the HOD on Aug. 7 at a time to be announced. The HOD is also sponsoring a roundtable discussion, “The Next Battleground: State Constitutions and Individual Rights,” at 11 a.m. MDT on Aug. 7. The panel — consisting of California Supreme Court Justice Leondra Kruger, Chief Judge Jeffrey Sutton of the U.S. Court of Appeals for the 6th Circuit, Yale University professor Akhil Amar and University of Michigan law professor Evan Caminker — will explore the interplay between recent U.S. Supreme Court landmark decisions and state constitutions and individual rights. Professor Farah Peterson of the University of Chicago Law School will moderate the discussion.
The HOD will take up at least two law practice resolutions, including an amendment to Model Rule 1.16: Declining or Terminating Representation of the ABA Model Rules of Professional Conduct. The change represents another step in the ABA’s efforts to protect lawyers from unwittingly becoming involved in a client’s or prospective client’s criminal and fraudulent activities. In February, for instance, the HOD adopted a measure that updates the ABA’s policy on beneficial ownership disclosure.
The proposed change, Resolution 100, brings explicitly into the text of the model rules that which was long implicit: Lawyers are obligated to inquire into and assess the facts of matters to meet their ethical requirements, such as identifying and addressing conflicts of interests and other obligations. The change also provides guiding factors to help lawyers undertake the proportional risk-based approach to their inquiry and assessment, and it notes the level of inquiry and assessment will vary depending on the nature of the risk posed by each situation.
Advocates hope that its adoption will reduce the risk that the U.S. legal profession would be subject to federal legislation that includes among other things, suspicious activity reports on clients without notifying them, and expensive and time-consuming client due diligence requirements.
A second law practice-oriented measure, Resolution 505, urges the federal judiciary to implement a rule and procedure in which an attorney’s admission into a specific U.S. District Court would allow automatic practice in other federal district courts rather than having to apply for individual districts.
The HOD will also consider several resolutions related to issues that have been prominently in the news recently.
Resolution 521 urges federal courts to eliminate the mechanism that predictably assigns a case to a single U.S. District Court judge without random assignment when the case seeks to enjoin or mandate the enforcement of a state or federal law or regulation. In recent years, activist groups have employed the practice of “judge shopping” by filing cases in districts where a single, predetermined judge is assigned a case. The plaintiff’s intent is to achieve a favorable outcome in court, such as the judicial-imposed moratorium on the abortion drug mifepristone.
Resolution 509 complements that resolution, by supporting the principle that judicial review of decisions of the Food and Drug Administration to approve drugs be conducted under a legal standard which takes into account science and statutory decision-making authority. Its report acknowledges the proposal arises from recent orders of the U.S. District Court for the Northern District of Texas and the U.S. Court of Appeals for the 5th Circuit that suspended the FDA’s approval of mifepristone — decisions which were later stayed by the U.S. Supreme Court.
Other resolutions stemming from recent national developments include several that urge Congress to take specific action. They include:
- Repeal the Comstock Act of 1873, which makes it illegal to send “obscene, lewd or lascivious,” “immoral” or “indecent” publications through the mail. The 150-year-old law is now at the center of a legal battle over abortion pills, as anti-abortion activists are citing it to bolster their case against using the mail to send birth control pills (Resolution 510).
- Enactment of Women’s Health Protection Act of 2023 or similar legislation to protect patients’ access to abortion care without medically unnecessary restrictions and to protect health care professionals’ ability to provide such care (Resolution 511).
- Legislation permitting and encouraging both federal and private student loan lenders to create more favorable terms for borrowers and for Congress to incentivize private student loan lenders to create more favorable terms and protections for borrowers, like those available to federal student loan borrowers (Resolution 520).
Several resolutions relate to legal education and bar admissions. Resolution 403 urges schools to adopt policies, consistent with the ABA Standards and Rules of Procedure for Approval of Law Schools to permit students to obtain academic credit or monetary compensation for their participation as editors of law reviews and other academic law journals. Resolution 300 and Resolution 301, among other things, increase the ceiling for credits related to field studies outside the U.S. as well as for distance learning courses. And Resolution 519 supports efforts by various entities to ensure that bar admission is not denied based solely on immigration status, consistent with federal laws regarding the employment of undocumented immigrants.
Other timely proposals include:
- Resolution 606, which encourages governmental entities to reject proposed or repeal existing laws and policies that target and harmfully discriminate against transgender people, especially youth.
- Resolution 524, which urges governmental entities to condemn Islamophobia or the dislike of or prejudice against Islam or Muslims and seeks federal legislation to combat or eliminate it.
- Resolution 513, which urges governmental entities to adopt or amend laws, regulations and policies to prohibit discrimination on the basis of caste to protect Dalits and other caste-oppressed communities from discrimination based on caste. The caste system particularly affects those of South Asian descent living in the U.S.
- Resolution 603, which revises the Ten Principles of a Public Defense Delivery System, which have not been updated in two decades, to include recommendations involving workload management for public defenders and urges public bodies to implement any necessary legal and policy changes where deficiencies may exist.
With the posted agenda set weeks in advance of the HOD meeting, late resolutions could be added under certain circumstances to reflect proposed ABA policy responses to national developments during the past few weeks. For details on all current policy resolutions and other matters for consideration during the two-day session, click here. HOD proposals do not become ABA policy until approved by the House, which meets twice annually.
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