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August 08, 2023

HOD strengthens rule on duty of lawyers to review clients, other new policies

The American Bar Association House of Delegates wrapped up its two-day session on Aug. 8 by adopting a host of new policies, including a resolution that strengthens a lawyer’s obligation to assess whether a client seeks to use the lawyer’s services to further a crime or fraud before accepting or maintaining representation.

The ABA House of Delegates convened at the 2023 Annual Meeting in Denver to debate policy proposals on a variety of key legal topics.

The ABA House of Delegates convened at the 2023 Annual Meeting in Denver to debate policy proposals on a variety of key legal topics.

American Bar Association photo

The lengthy debate on Resolution 100 divided the House, known as the HOD, which eventually approved by a vote of 216-102 an amendment to Model Rule 1.16: Declining or Terminating Representation of the ABA Model Rules of Professional Conduct. The change represents a second step this year 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, the HOD, which is comprised of 597 delegates from ABA entities and state, local and specialty bar associations, adopted a measure that updates the ABA’s policy that endorsed for the first time “reasonable and appropriate” federal government efforts aimed at combating money laundering. The policy seeks to balance the longstanding attorney-client privilege with the demands of governmental entities seeking access to information on criminal activities.

Altogether, the HOD took action on more than 50 agenda items at its two-day meeting at its 2023 ABA Annual Meeting, which began on Aug. 2 in Denver. It also approved a wide-ranging group of other policies, including several in the criminal justice area that outlined new plea-bargaining guidelines and oppose forced labor in prisons.

Both federal lawmakers and the U.S. Department of Treasury officials have urged the ABA to strengthen its model rule on client review obligations because of concern that lawyers’ services can be used for money laundering and other criminal and fraudulent activity. Typically, this happens in a transaction when a client asks the lawyer to hold a substantial amount of money in a client trust fund for a business deal, only to ask for the money back later because the deal purportedly did not proceed.

The amendment “tells a lawyer what the obligation is when they confront a client who wants to commit fraud or a criminal act,” said North Dakota Supreme Court Justice Daniel Crothers, who chaired one of the two ABA standing committees that crafted the amendment to the model rule. Added ABA Treasurer Kevin Shepherd: “We know as lawyers we are not going to stick our heads in the sand and let our services be used for crime or fraud.”

Opponents said the amendment, which effectively puts in the “black letter” of the model rule what is in the comment part, adds an unfair burden to lawyers because it is too vague and exposes them to state discipline entities for what they “should have known.”

On its first day of votes, the HOD adopted: Resolution 502, which sets out 14 principles to reform plea agreements; and Resolution 503, which urges that governmental entities both repeal laws that allow involuntary servitude through prison labor and ensure that all prison labor is voluntary, safe and fairly compensated. Currently, the 13th Amendment of the U.S. Constitution, which forbids slavery and involuntary servitude, provides for an exception for punishment of crimes.

The HOD also adopted Resolution 512, which urges governmental jurisdictions where capital punishment is a possible penalty to take steps to prevent discrimination based on the race, ethnicity, gender or gender identity of the victim, the defendant or both. The ABA has no position on the death penalty per se but has policies that seek its use in a fair way.

In terms of public defense, the HOD approved Resolution 603, which revises the Ten Principles of a Public Defense Delivery System, which have not been updated in two decades. The new policy includes recommendations involving workload management for public defenders and urges public bodies to implement any necessary legal and policy changes where deficiencies may exist.

The HOD also adopted two new policies that emerged from the recent legal case arising in Texas and related to the pregnancy blocker mifepristone, which is known as an abortion pill.

Resolution 521 urged 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, such as the case that was filed in federal court in Amarillo related to mifepristone.

In that case, recent orders of the judge and the U.S. Court of Appeals for the 5th Circuit suspended the Federal Drug Administration’s approval of the drug — decisions which were later stayed by the U.S. Supreme Court. The HOD also adopted Resolution 509, which supports the principle that judicial review of decisions of the FDA to approve drugs be conducted under a legal standard that considers science and statutory decision-making authority.

In other business, the HOD adopted:

  • Resolution 524, which urges both U.S. governmental entities to condemn Islamophobia and also that the U.S. and U.N. member states adopt legislation and pursue actions that combat and eliminate it.
  • Resolution 511, which supports the 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 513, which asks governmental entities to take action 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 300 and Resolution 301 which, among other things, increase the ceiling for credits related to field studies outside the U.S. as well as for distance learning courses.
  • 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.

For all HOD votes and other action over the two days, click here. HOD proposals do not become ABA policy unless adopted by the House, which meets twice annually.