Denver Bar Association
May 2012
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Report from New Orleans: Inside the ABA Midyear Meeting

by Troy R. Rackham

I have the privilege of serving the Denver Bar Association as a delegate to the American Bar Association House of Delegates.  The ABA House of Delegates met at the ABA’s midyear meeting held in New Orleans in February.  This article summarizes the House of Delegates events at the midyear meeting and the actions taken by the House.

The Midyear Meeting had the best reported attendance on record.  The ABA sponsored numerous programs on issues such as the Ethics 20/20 Commission, the state court funding crisis, and efforts to improve access to justice.  There were many important issues addressed by the House of Delegates at the midyear meeting.  This article summarizes a few of them.

 

Ethics 20/20 Commission’s White Papers and Proposals Relating to the Ethics of Litigation Financing, Non-Lawyer Ownership of Law Firms, Outsourcing, and the Use of Technology of Mobile Devices

Before the House of Delegates convened, the Ethics 20/20 Commission sent information around to the delegates regarding the work of the commission and its proposals.  Specifically, the commission informed the delegates of its plan to bifurcate its presentation of proposals to help facilitate the House of Delegates’ consideration of the commission’s recommendations.  The decision to bifurcate the presentation of proposals foretells a concern that some of the commission’s proposals will be controversial and will generate much discussion and debate. 

Indeed, from the preview that the commission has provided, some of the issues that the commission will put before the House will generate much discussion.  The commission has produced white papers that discuss many of the complex ethical issues that cannot effectively be addressed through changes to Model Rules.  Specifically, one of the commission’s white papers discusses ethical issues involved with litigation financing, including issues regarding conflicts of interest, a lawyer’s duty of confidentiality, the attorney-client privilege, and rules regulating the exercise of the lawyer’s independent judgment.  The commission’ white paper can be found here.    

The commission also is working on proposals relating to alternative business structures for law firms, outsourcing of legal services and confidentiality-related ethics issues arising from lawyers’ use of technology.  Additionally, the commission is working on a model rule relating to lawyers’ obligations to retain client files.  An issues paper regarding alternative business structures for law firms—including non-lawyer ownership of law firms—has been distributed by the commission.  It can be found here

During the House of Delegates meeting, Former ABA President Carolyn B. Lamm addressed the House about the commission’s progress.  Lamm explained that numerous roundtable sessions and meetings have been held around the country.  She explained that formal recommendations will be presented at the annual meeting in 2012 and at the midyear meeting in 2013.  Lamm also explained that one of the commission’s more controversial issues is whether non-lawyers should be allowed under legal ethics rules to have a limited ownership interest in law firms in the United States.  This issue has been discussed extensively in Colorado previously.

Lamm explained that the commission is considering other issues relating to the need to balance the convenience and efficiencies inherent in a lawyer’s use of new technologies, while also preserving the lawyer-client relationship, confidentiality, competence, and the values of the profession.  Lamm said the commission plans to present proposals on each of these issues for consideration to the House of Delegates.  All interested members of the Bar should get in touch with me or other Colorado delegates to discuss any concerns about any of the issues that are being considered by the Ethics 20/20 Commission, or the proposals that are likely coming from the commission.

 

Summary of the House of Delegates

After the House of Delegates convened on Feb. 6, the Delegates were greeted by Mitchell Landrieu, the mayor of New Orleans, who also is a lawyer.  Landrieu talked about the challenges that the city has been through in recent years, with Hurricanes Katrina and Rita, and the BP oil spill.  Landrieu quipped that the city is “waiting for locusts now.”  Landrieu’s speech was interesting and insightful, explaining that New Orleans is truly resilient and has become “a laboratory for innovation and change,” because of the disasters it has suffered.  His speech was an excellent way to kick-off the work of the House.

After the mayor’s speech and some other introductory actions, the House got to work debating and voting on resolutions before the House.  The House adopted a number of important resolutions, including:

  • Resolution 101A adopts the black letter ABA Criminal Justice Standards on Law Enforcement Access to Third Party, which provide a framework through which legislatures, courts acting in their supervisory capacity, and administrative agencies can balance the needs of law enforcement and the interests of privacy, freedom of expression, and social participation.
     
  • Resolution 101Burges governments at various levels to require laboratories producing reports for use in criminal trials to adopt pretrial discovery procedures requiring comprehensive and comprehensible laboratory and forensic science reports, and listed relevant factors to be included in such reports. 
     
  • Resolution 101C urges trial judges who have decided to admit expert testimony to consider a number of factors in determining the manner in which that evidence should be presented to the jury, and also provided guidance about how to instruct the jury in its evaluation of expert scientific testimony in criminal and delinquency proceedings. 
     
  • Resolution 101F supports legislation, policies, and practices that allow equal and uniform access to therapeutic courts and problem-solving sentencing alternatives, such as drug treatment and anger management counseling, regardless of the custody or detention status of the individual.
     
  • Resolution 113 calls for adoption as ABA policy uniform standards for language access in courts.  The policy provides clear guidance to courts in designing, implementing, and enforcing a comprehensive system of language access services that is suited to the need in the communities they serve.
     
  • Resolution 102B approves the Uniform Electronic Legal Material Act promulgated by the National Conference of Commissioners on Uniform State Laws in 2011, as an appropriate act for those states desiring to adopt the specific substantive law suggested therein.  The act provides rules for the authentication and preservation of electronic legal material. 
     
  • Resolution 108 urges state and territorial bar admission authorities to adopt rules and procedures to accommodate the unique needs of military spouse attorneys who move frequently in support of the nation's defenses.
     
  • Resolution 111 urges entities that administer a law school admission test to provide appropriate accommodations for a test taker with a disability to best ensure the exam reflects what the test is designed to measure and not the test taker's disability.
     
  • Resolution 302 supports the principle that “private” lawyers representing governmental entities are entitled to claim the same qualified immunity provided to “government” lawyers when they are acting “under color of state law.” This issue is particularly important given that there is a pending case before the United States Supreme Court considering this question.  See Filarsky v. Delia, U.S. No. 10-1018, argued Jan. 17, 2012.

A summary of the resolutions adopted by the House can be found here. Additionally, I can provide a copy of the resolutions to any interested reader.

 

Statement from President Robinson

In addition to this important work, the House of Delegates heard from ABA President Bill Robinson.  Robinson explained that the most pressing issue facing the legal system today is under-funding of the courts, which is at a crisis level.  He urged all ABA members to consider the under-funding crisis to be a threat to our liberty and the rule of law. Robinson explained the ABA’s efforts to combat this crisis, including its extensive education efforts and its efforts to increase public awareness about the crisis.  Additionally, the ABA has made the crisis the core of Law Day events, which will focus on the theme: “No Courts, No Justice, No Freedom.”

 

Nomination of James Silkenat as President-Elect

The nominating committee announced that James Silkenat of New York was nominated to be President-Elect Designee of the ABA.  The House of Delegates will vote on his nomination at the Annual Meeting in Chicago this August.  If elected, Silkenat will serve a one-year term as president beginning in August 2013.  All members of the Bar are urged to give any input on Silkenat to me or any of the other Colorado delegates.

 

Other Matters

Finally, the House of Delegates considered other matters, including a report from the ABA’s Executive Director Jack Rives and a report from the ABA’s treasurer.  The House also heard from Chief Judge Washington, who is the president of the Conference of Chief Justices.  Washington spoke about language access to the courts.  He also discussed the core focuses of the conference, which are judicial independence and civics education.

 

Conclusion

I hope this article sufficiently highlighted many of the more interesting or important the agenda items considered by the House of Delegates at the midyear meeting in New Orleans.  I appreciate all input that any members of the DBA have regarding any of the issues that have been considered, or will be considered, by the ABA House of Delegates.

 

Troy R. Rackham is the DBA’s delegate to the ABA House of Delegates. He is of counsel at Fennemore Craig. Members interested in discussing issues of the ABA and the House of Delegates may contact him at trackham@fclaw.com.


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