This Month's News
An intense effort by the ABA and other groups concerned about civil legal aid to the poor prompted the Federal Deposit Insurance Corporation (FDIC) to announce Nov. 21 that final rules for the new Temporary Liquidity Guarantee Program (TLGP) make Interest on Lawyer Trust Accounts (IOLTA) eligible for unlimited deposit insurance coverage. Read more...
As President-elect Barack Obama sets the priorities for his administration, the ABA is voicing its views on numerous issues of national importance. Read more...
The Antitrust Law Section’s Fall Forum featured a panel Nov. 14 discussing the transition to the next presidential administration and upcoming priorities on Capitol Hill. Read more...
The ABA has established groups to coordinate the association’s involvement in two major issues facing the country: regulation of financial markets, and health care reform. Read more...
This year’s Annual Review of the Field of National Security Law Conference focused on issues for the new administration. Read more...
Individuals and representatives of numerous organizations and projects expressed their views last month on how the incoming Obama administration should develop juvenile justice priorities. Read more...
ABA President H. Thomas Wells Jr. last month reiterated that Congress should take action to provide “an immediate and lasting remedy to halt the erosion of judicial pay. Read more...
Thomas M. Susman, director of the ABA Governmental Affairs Office (GAO), addressed the 22nd Annual State Legislative Workshop held Nov. 12-14 in Washington, D.C. Read more...
WASHINGTON NEWS BRIEFS
ATTORNEY GENERAL NOMINATION: Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) said Dec. 1 that he plans to move quickly on the nomination of Eric Holder to be the next U.S. attorney general. Read more...
ATTORNEY-CLIENT PRIVILEGE: The General Services Administration, the Department of Defense, and the National Aeronautics and Space Administration issued a final rule Nov. 12 that provides some significant protections for the attorney-client privilege, the work product doctrine and employee legal rights that are consistent with recommendations made in June by the ABA Task Force on Attorney-Client Privilege, other members of the coalition working with the ABA, and the Department of Justice. Read more...
HUMAN RIGHTS DECLARATION: The ABA Board of Governors adopted a policy during its fall meeting in October urging the United States and other countries to renew their commitment to the principles of the Universal Declaration of Human Rights (UDHR), which was signed 60 years ago in Paris. Read more...
IOLTA will have full coverage under temporary FDIC program
An intense effort by the ABA and other groups concerned about civil legal aid to the poor prompted the Federal Deposit Insurance Corporation (FDIC) to announce Nov. 21 that final rules for the new Temporary Liquidity Guarantee Program (TLGP) make Interest on Lawyer Trust Accounts (IOLTA) eligible for unlimited deposit insurance coverage.
The Rule also gave banks until Dec. 5 to opt out of the TLGP. Each bank that chose to opt out was given until Dec. 19 to post a prominent notice in the lobby of its main office and each branch, and, if it offers Internet services, on its website clearly indicating whether or not the institution is participating in the program. Until Dec. 19, the institution is to "provide in a commercially reasonable manner adequate disclosures of the substance of these required disclosures."
IOLTA programs provide a significant source of financial support for legal services programs and exist in all 50 states, the District of Columbia and the U.S. Virgin Islands. IOLTA contain client funds held by a lawyer on behalf of a client that are nominal in amount or held for a short period of time and typically include court filing fees, real estate closings, settlements and retainers. The interest from these accounts is paid to state IOLTA programs. In 2007, IOLTA grants nationwide totaling $240 million were used to provide for free civil legal services to the poor, administration of justice, and law-related education.
ABA President H. Thomas Wells Jr. applauded the FDIC action, which he said will allow IOLTA programs to “continue to make a real difference in the lives of low-income Americans.”
The ABA, state and local bar associations, and other legal groups mobilized their efforts last month when it became apparent that unlimited insurance coverage under the new TLGP, a program instituted by the FDIC Board in October in light of the nation’s economic crisis, would not extend to IOLTA. The TLGP, set to run through the end of next year, is directed toward non-interest bearing accounts such as payroll accounts used by businesses. Many smaller, healthy banks have been losing these accounts to much larger banks because of uncertainties in the financial system.
The FDIC, in adopting an interim rule Oct. 23, created a situation in which lawyers holding client funds for a short time exceeding $250,000 would have had to consider whether to continue to use their IOLTA or to place their client funds in a fully insured, non-interest bearing deposit transaction account. As a result, critically needed funding for the provision of legal services to the poor would be lost.
“Abandoning IOLTA would have been catastrophic for IOLTA programs in all 50 states,” Wells said, adding that “moving the accounts to larger banks would have defeated the FDIC’s purpose in creating the TLGP.”
The ABA alerted state and local bars, the IOLTA community, the ABA House of Delegates and other ABA leaders and urged them to contact their own members of Congress and to send comments as requested in the FDIC interim rule. ABA leaders, including Wells and ABA President-elect Carolyn Lamm, met with FDIC Chair Sheila Bair and other board members. Additional contacts with House and Senate leaders resulted in letters of support for FDIC coverage sent by the Senate Banking Committee and the House Financial Services Committee.
“We should not be compounding the harm that the current financial crisis has already caused to IOLTA revenue and legal aid services, particularly since the crisis itself has increased the number of households in need of legal aid,” Senate Banking Committee Chairman Christopher Dodd (D-Ct.) and a bipartisan group of committee members wrote to the FDIC. “Nor should we put community banks at a disadvantage at a time when the FDIC is seeking to strengthen confidence and encourage liquidity in the banking system,” he cautioned.
In addition, the FDIC will maintain a list on its website of the banks that have opted out of the program.
ABA submits transition papers to Obama team
As President-elect Barack Obama sets the priorities for his administration, the ABA is voicing its views on numerous issues of national importance.
The association’s Governmental Affairs Office prepared the following documents for submission to the Obama transition team: Antiterrorism and the Preservation of Civil Liberties; Improving the Civil Justice System; Criminal Justice System Improvements; and In Support of a Fair and Impartial Federal Judiciary. A fifth document on immigration issues is expected to be submitted later this month.
Each of the documents highlights ABA policy positions that include recommendations for action at the federal level.
Antiterrorism and the Preservation of Civil Liberties. This document urges the new administration to reexamine the military tribunal process currently underway for detainees at Guantanamo Bay and reevaluate whether to continue using military commission to try suspected terrorists. The paper also urges the new administration to unequivocally condemn the use of torture or other cruel, inhuman or degrading treatment of detainees in U.S. custody; to act immediately to establish a uniform standard of interrogation; and to take all measures to ensure that no person within the custody or under the physical control of the United States is turned over to another government when there are substantial grounds to believe that the person will be in danger of being subject to torture. The ABA also support enactment of legislation establishing uniform procedures and standards to govern consideration claims that may be subject to the state secrets privilege, and urges Congress to review the intelligence oversight process and make recommendations to strengthen it.
Improving the Civil Justice System . Access to civil legal services would be enhanced by adequate funding for the Legal Services Corporation; permanent preferred tax status for employer-provided group legal services plans; and legislation guaranteeing legal assistance as matter of right for low-income military personnel and their dependents. Also included in this report is support for legislation to protect the attorney-client privilege, to enact a patients bill of rights; to provide adequate funding to the Social Security Administration; and oppose circumventing the Rules Enabling Act for making changes in the Federal Rules of Procedure or Evidence. In the area of tort law, the report opposes effort to preempt state medical liability laws; enact broad federal product liability law; or to establish health courts that deny inured patients the right to a trial by jury.
Criminal Justice System Improvements. This document covers a wide range of criminal justice issues. Recommendations include: shifting funding priorities from interdiction and prosecution of illegal drugs to a balanced strategy that is more proactive and preventive; supporting broad use of alternatives to incarceration; repealing mandatory minimum sentences; and eliminating sentencing disparities. Also central to improving the system is enactment of legislation to study and address racial disparities and support for successful community reentry for formerly incarcerated persons. In addition, strong federal leadership is needed for reforming the juvenile justice system through reauthorization of the Juvenile Justice and Delinquency Prevention Act and establishment of community-based alternatives to combat gangs. Prison reform is another issue that must be addressed as well as providing federal funding for indigent defense services at the federal, state and local levels and establishing a National Center for Public Defense Services. The association also is urging Congress to reform the habeas corpus process.
In Support of a Fair and Impartial Judiciary. The ABA believes that the new president should consult in good faith with home state senators and with Senate leaders of both parties prior to nominating individuals for life-time appointment to the federal bench, and recommends the use of bipartisan commissions for recommending qualified candidates. Another area of concern is providing the federal courts with sufficient resources for properly carrying out administrative functions and dispensing justice in a timely manner. The ABA also cautions against adding new federal causes of action that would increase the federal court workload and costs, and have the potential to disrupt the constitutional balance of the federal and state courts systems. A crucial goal of the ABA is to provide immediate and lasting pay relief for federal judges so that the federal judiciary can attract and retain highly qualified and diverse judges.
Full texts of the documents are posted online at:
Antitrust Law Section looks ahead
The Antitrust Law Section’s Fall Forum featured a panel Nov. 14 discussing the transition to the next presidential administration and upcoming priorities on Capitol Hill. The section submitted recommendations to the Obama transition team Nov. 25 that includes 66 recommendations and highlighted 12 topics identified by the Transition Report Task Force that will best advance the core bipartisan objectives of antitrust law and consumer protection — protecting competition and promoting consumer welfare. Those appearing on the panel were (from left): moderator James A. Wilson, Vorys Sater Seymour and Pease, Columbus, Ohio; Robert L. Hubbard, director of litigation, Antitrust Bureau, New York Attorney General’s Office; E. Stewart Jeffries, minority counsel, House Judiciary Committee; Janet L. McDavid, Hogan & Hartson, Washington, D.C.; Phillip A. Proger, Jones Day, Washington, D.C.; and Anant Raut, majority counsel, House Judiciary Committee.
ABA forms groups to coordinate involvement in major issues
The ABA has established groups to coordinate the association’s involvement in two major issues facing the country: regulation of financial markets, and health care reform.
The ABA Board of Governors approved the creation of the 15-member Task Force on Financial Markets Regulatory Reform in November. The task force, requested by ABA President H. Thomas Wells Jr., will study the legal and regulatory implications of the current financial crisis, especially as they relate to the practice of law and effective representation of clients. The group will coordinate the ABA’s response to regulatory developments that may result from the recommendations of the federal President’s Working Group on Financial Markets and the actions taken by the Federal Reserve, the Treasury Department, the Securities and Exchange Commission, and other federal agencies with responsibility for regulating the U.S. financial markets.
The group will work closely with the ABA Governmental Affairs Office (GAO) and other relevant ABA entities to respond to both regulatory developments and proposed federal legislation affecting the U.S. financial regulatory structure.
According to Wells, the task force will focus primarily on regulatory issues because while major financial reform sometimes begins with the passage of broad legislation, it is often the subsequent implementing regulations and other major agency rules that actually govern financial institutions and markets on a practical level. These agency regulations, Wells explained, can have a “significant effect on the practice of law as we have seen in recent years with the various federal agency policies that have eroded the corporate attorney-client privilege during federal investigations.”
The task force, which is receiving staff support from the Business Law Section and the Governmental Affairs Office, will report directly to the ABA president and the Board of Governors.
The association’s Governmental Affairs Office created the second group, the Working Group on Access to Health Care Proposals, which includes chairs of various ABA entities with strong interest in health care issues. The members will review pending and future health care access proposals; develop issue papers to assist policymakers who are drafting health care access proposals; identify experts who might assist policymakers in the consideration of options; and identify policy areas for which additional ABA policy should be developed.
The GAO established the working group so that the ABA will be in a position to assist the incoming Obama administration and the 111th Congress efficiently and swiftly as health care access proposals are developed and considered next year, according to GAO Director Thomas M. Susman. He emphasized that it important that the ABA “fully participate in the debate and is at the table to assist in addressing issues that America’s lawyers are uniquely qualified to address.”
18th Law and National Security Annual Review convenes
This year’s Annual Review of the Field of National Security Law Conference focused on issues for the new administration. The event, held Nov. 6-7 and now in its 18th year, is cosponsored by the ABA Standing Committee on Law and National Security; the Center for National Security Law at the University of Virginia School of Law, and the Center on Law Ethics and National Security at Duke University School of Law. Those appearing on a panel titled “Due Process and Issues Surrounding Detention: Considerations for the New Administration” were (from left): Kate Martin, director, Center for National Security Studies; CDR Glenn M. Sulmasy, USCG, associate professor of law, U.S. Coast Guard Academy; Matthew Waxman, associate professor of law, Columbia Law School; and Benjamin Wittes, fellow and research director in public law, The Brookings Institution. The panel discussion was moderated by Harvey Rishikof, professor of law and national security studies, National War College.
Town hall draws juvenile justice proposals
Individuals and representatives of numerous organizations and projects expressed their views last month on how the incoming Obama administration should develop juvenile justice priorities.
More than 25 groups appeared before a panel convened Nov. 6 by the ABA Criminal Justice Section Juvenile Justice Committee for “A Call to Action for Juvenile Justice,” a town hall meeting hosted by the Georgetown University Law Center Juvenile Justice Clinic.
Harvard Law professor Charles J. Ogletree Jr., a co-chair of the ABA Juvenile Justice Committee and an adviser to President-Elect Barack Obama on criminal justice matters, moderated the panel, which included Georgetown Law professor Kristin Henning; Massachusetts Juvenile Court Associate Justice Jay Blitzman; Pennsylvania State Rep. Stewart Greenleaf; Rhode Island Attorney General Patrick Lynch; and Washington Post social services reporter Chris Jenkins.
Town hall participants submitted numerous proposals, many focusing on reauthorization of the 1974 Juvenile Justice and Delinquency Prevention Act (JJDPA), which expired in 2007. Legislation introduced in the 110th Congress to reauthorize the act would have authorized JJDPA through 2013. The legislation, which was approved by the Senate Judiciary Committee, sought to strengthen the act’s four core requirements: sight and sound separation of juveniles from adult offenders; removal of juveniles from adult jails and lockups; deinstitutionalization of status offenders; and reduction of disproportionate minority contact within the justice system.
During consideration of the bill, the Senate committee added an ABA-supported amendment to phase out the use of the Valid Court Order (VCO) exception that has been used regularly to confine non-delinquent status offenders in detention centers. Further action on JJDPA reauthorization is expected early in the first session of the 111th Congress.
Other ABA entities cosponsoring the town hall program included the Standing Committee on Substance Abuse; the Standing Committee on Legal Aid and Indigent Defendants; the Center on Children and the Law; the Public Education Division; and the Commission on Youth at Risk. The National Legal Aid and Defender Association, the Children’s Defense Fund, the National Criminal Justice Association, and the National Juvenile Justice and Delinquency Prevention Coalition also cosponsored the event.
Harvard Law professor Charles J. Ogletree Jr. (left), a co-chair of the ABA Juvenile Justice Committee and an adviser to President-Elect Barack Obama on criminal justice matters, moderated a juvenile justice panel that included (seated from left): Washington Post social services reporter Chris Jenkins; Rhode Island Attorney General Patrick Lynch; Massachusetts Juvenile Court Associate Justice Jay Blitzman; Georgetown Law professor Kristin Henning; and Pennsylvania State Rep. Stewart Greenleaf.
ABA urges immediate action on judicial pay
ABA President H. Thomas Wells Jr. last month reiterated that Congress should take action to provide “an immediate and lasting remedy to halt the erosion of judicial pay.”
“Fair pay for judges is key to sustaining fair and impartial courts that uphold the American ideals of justice and equal treatment under the law,” Wells said in a statement issued Nov. 19. He pointed out that federal judges haven’t had a real raise since 1992 and did not even get a cost-of-living adjustment (COLA) in six of those years. As a result, during the past 15 years U.S. federal judges have lost 12 percent of their salaries’ purchasing power, he emphasized.
In a Nov. 20 letter to all senators, ABA Governmental Affairs Director Thomas M. Susman cited two modest but important steps that can be taken: assure that judges are permitted to receive the same COLA that congressional members will receive in 2009; and repeal Section 140 of P.L. 97-92, which requires Congress to provide explicit approval for each judicial COLA.
“While we continue to believe that it is essential that Congress enact a 30 percent pay raise for federal judges, as was approved by both the Senate and House Judiciary Committees earlier this year, we nevertheless understand that its enactment may not be politically feasible given the economic downturn and the level of priority that some members of Congress assign to it,” Wells said. He said the ABA is deeply disturbed, however, that the fiscal year 2009 COLA has not yet been approved because Congress has not passed legislation to waive Section 140.
He explained that Section 140 was originally enacted to require explicit approval of judicial COLAs as an amendment to a continuing appropriations bill in 1981 because of concern over the Supreme Court decision in U.S. v. Will, 449 U.S. 2000 (1980). That decision ruled that Congress had violated the Compensation Clause of the Constitution by revoking two automatic judicial COLAs after the statutes guaranteeing the COLAs had already gone into effect. Congress reenacted Section 140 in 2001 after the Court of Appeals for the Federal Circuit ruled that Congress never intended for the provision to be permanent.
The reenactment of Section 140 was unfortunate, Wells said, because the provision “directly and needlessly injects politics into judicial salary adjustments and suggests congressional disregard for a co-equal branch of government.”
“Repealing Section 140 and assuring that judges are entitled to the 2009 COLA will have little impact on the FY 2009 budget but will send a very clear message that Congress recognizes the growing urgency of dealing effectively with lagging judicial salaries and is ready to start taking action to help preserve the vital role of the federal judiciary in our constitutional system of government,” Wells concluded.
During the 110th Congress’ lame duck session last month, the Senate passed S. 3711, which would waive Section 140 and provide judges with the 2009 COLA, but the House did not vote on the bill. Consideration of the issue is expected when the 111th Congress convenes in January, but earlier action also is possible if the 110th Congress returns for another lame duck session this month.
NABE holds legislative workshop
Thomas M. Susman, director of the ABA Governmental Affairs Office (GAO), addressed the 22nd Annual State Legislative Workshop held Nov. 12-14 in Washington, D.C. The gathering is sponsored each year by the Government Relations Section of the National Association of Bar Executives with the support of the GAO and the ABA Bar Services Division. GAO staff provided attendees with updates on ABA legislative policy issues, and Susman and Bill Weisenberg, assistant executive director for public affairs and government relations at the Ohio State Bar Association, discussed ways the GAO and state and local bars could work together to advance legislative initiatives of importance to the profession. Other speakers included: Tim Storey, elections expert, National Conference of State Legislatures; Bill Raftery, executive director, National Center for State Courts; Michael Kerr, legislative director for the Uniform Law Commission; Paula Franzese, professor, Seton Hall Law School; and Jack Hanna, director, and Robert Snoddy, outreach director, ABA Criminal Justice Section.
COMPLETE WASHINGTON NEWS BRIEFS
ATTORNEY GENERAL NOMINATION: Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) said Dec. 1 that he plans to move quickly on the nomination of Eric Holder to be the next U.S. attorney general. Leahy indicated that he hopes to schedule hearings and a confirmation vote by his committee before the Jan. 20 inauguration of President-elect Barack Obama. Holder, a litigation partner at Covington & Burling law firm in Washington, D.C., was deputy attorney general in the Clinton administration. Prior to that, he was an associate judge of the Superior Court of the District of Columbia for five years and was U.S. attorney for the District of Columbia for four years. He is a 1977 graduate of Columbia Law School. If confirmed as U.S. attorney general by the Senate, Holder will head the Justice Department and serve as the chief law enforcement officer of the federal government. In announcing the nomination, Obama said that Holder “has the combination of toughness and independence we need at the Justice Department.” Other Cabinet choices made by Obama so far include: New York Federal Reserve President Timothy Geithner, secretary of the Treasury; Sen. Hillary Clinton (D-N.Y.), secretary of State; Robert Gates, secretary of Defense; New Mexico Gov. Bill Richardson, secretary of Commerce; and Nevada Gov. Janet Napolitano, secretary of Homeland Security.
ATTORNEY-CLIENT PRIVILEGE: The General Services Administration, the Department of Defense, and the National Aeronautics and Space Administration issued a final rule Nov. 12 that provides some significant protections for the attorney-client privilege, the work product doctrine and employee legal rights that are consistent with recommendations made in June by the ABA Task Force on Attorney-Client Privilege, other members of the coalition working with the ABA, and the Department of Justice. The final rule, which was prepared by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council and goes into effect Dec. 12, amends the Federal Acquisition Regulation (FAR) on Contractor Business Ethics Compliance Programs and Disclosure Requirements. The rule requires federal contractors to adopt a code of business conduct, establish an internal control system, disclose certain violations of criminal law or the civil False Claims Act to the government, and give “full cooperation” to federal agencies conducting audits, investigations or corrective actions. The new definition of “full cooperation” in the final rule clarifies that contractors will not be required to waive their attorney-client privilege or work product protections in order to receive cooperation credit. It also clarifies that the contractors’ employees need not waive the privilege or their Fifth Amendment rights in order to be considered fully cooperative. The rule also replaces an earlier vague “reasonable grounds to believe that a…contractor has committed a violation” disclosure standard with a “credible evidence that a…contractor has committed a violation” standard. The final rule also narrows the types of violations that must be disclosed.
HUMAN RIGHTS DECLARATION: The ABA Board of Governors adopted a policy during its fall meeting in October urging the United States and other countries to renew their commitment to the principles of the Universal Declaration of Human Rights (UDHR), which was signed 60 years ago in Paris. The UDHR, adopted by the U.N. General Assembly in December 1948, recognized the atrocities of World War II and pledged the member states “to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms.” The UDHR was the first global expression of rights to which all human beings are inherently entitled and consists of 30 articles that have been elaborated in subsequent international treaties, regional human rights instruments, national constitutions, and laws. The declaration served as the foundation for two binding U.N. human rights covenants: the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. To celebrate the 60th anniversary, the ABA Section of International Law and the ABA Center for Human Rights sponsored a conference Nov. 13-14 in New York City that brought together members of more than 100 bars and law societies from around the world. The meeting featured several panels and a keynote luncheon speech by Andrew Young, former U.S. Permanent Representative to the United Nations. Future celebrations will be held in Paris in December and in Rome in 2010. During these programs, legal associations from around the world will be signing a statement affirming the importance of, and a commitment to, the principles of UDHR. The Board of Governors acted on the UDHR policy proposal between meetings of the House of Delegates to enable ABA President H. Thomas Wells Jr. to sign the statement.