DENVER, Aug. 8, 2023 — The American Bar Association House of Delegates wrapped up its two-day session today 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 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.
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.
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 Monday in the criminal justice area.
Resolution 502 sets out 14 principles to reform plea agreements, and Resolution 503 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.