MEMORANDUMTO: Camden County Board of Trustees FROM: Richard A. DeMichele, Jr. SUBJECT: 2012 Midyear Meeting of the American Bar Association and Meeting of the House of Delegates DATE: March 2, 2012 _____________________________________________________________________
INTRODUCTIONI’m fortunate and honored to be the Camden County Bar Association’s delegate to the American Bar Association’s House of Delegates. The House of Delegates is the governing body for the American Bar Association and meets twice annually. This memorandum was prepared with substantial help from the Select Committee of House of Delegates.
REPORT ON THE ABA MIDYEAR MEETINGThe 73rd Midyear Meeting of the American Bar Association (the “ABA”) was held February 2-6, 2012 at the Sheraton New Orleans Hotel in New Orleans,Louisiana. The host city of this meeting was spectacular as it offered innumerable dining choices. With all of the great eateries I am almost embarrassed to admit Café Du Monde with its café au lait and beignets was my favorite. I frequented the establishment twice while in New Orleans. If I ever was going to go on a diet it was not going to be while in New Orleans. There were Wide varieties of programs were sponsored by committees, sections, divisions, and affiliated organizations. The House of Delegates met for one day. The Nominating Committee also met. The Nominating Committee sponsored a “Meet the Candidates” Forum on Sunday, February 5, 2012. The following candidates seeking nomination at the 2013 Midyear Meeting gave speeches to the Nominating Committee and to the members of the Association present: Timothy L. Bertschy Illinois and G. Nicholas Casey of West Virginia, candidates for Treasurer; Mary L. Smith of Illinois, Mary T. Torres of New Mexico and Pauline A. Weaver of California, candidates for Secretary; and William C. Hubbard of South Carolina, candidate for President-Elect.
THE HOUSE OF DELEGATESThe House of Delegates of the American Bar Association (the “House”) met on Monday, February 6, 2012, Linda A. Klein of Georgia, presided as Chair of the House. The New Orleans Fire Department presented the colors. The invocation for the House was delivered by The Honorable Bernette Joshua Johnson, Associate Justice of the Louisiana Supreme Court. Laura V. Farber of California, Chair of the House Committee on Credentials and Admissions, welcomed the new members of the House and moved that the signed roster be approved as the permanent roster for this meeting of the House. The motion was approved. Chair Klein recognized all those lawyers who had served in the House of Delegates for more than 25 years. The Honorable Lawrence Walsh of Oklahoma, former President of the Association from 1975-1976, was recognized on the occasion of his 100th birthday. Deceased members of the House were named by the Secretary of the Association, Hon. Cara Lee T. Neville of Minnesota, and were remembered by a moment of silence. Chair Klein recognized Michael H. Reed of Pennsylvania on a point of personal privilege to speak about the passing of Jerome J. Shestack, former ABA President and member of the Pennsylvania delegation. Marna S. Tucker of the District of Columbia was recognized to speak about the passing of David B. Isbell, member of the District of Columbia Delegation. Robert L. Weinberg of the District of Columbia was recognized to speak about the passing of Timothy J. May, former member of the District of Columbia Delegation. Palmer Gene Vance II of Kentucky, Chair of the Committee on Rules and Calendar, provided a report on the Final Calendar for the House, including recently filed reports. He moved to consider the late-filed reports, adopt the final calendar and approve the list of individuals who sought privileges of the floor. All three motions were approved. Mr. Vance noted that the deadline for submission of Resolutions with Reports for the 2012 Annual Meeting is Tuesday, May 8, 2012, while the deadline for Informational Reports is Friday, June 1, 2012. He also referred to the consent calendar, noting the deadline for removing an item from the consent calendar. Later in the day, Mr. Vance moved the items remaining on the consent calendar. The motion was approved. For more details of the House meeting, see the following two-part report of the House session. The first part of the report provides a synopsis of the speeches and reports made to the House. The second part provides a summary of the action on the resolutions presented to the House. I. SPEECHES AND REPORTS MADE TO THE HOUSE OF DELEGATES Welcome by the Mayor of New Orleans The Honorable Mitchell J. Landrieu, Mayor of New Orleans welcomed the House, sharing that it has been his great honor as an executive to watch the law as it lives. He reminded delegates that lawyers are the protectors of liberty, freedom, and justice. Lawyers understand the tension recognized by our founding fathers that where there is a right, there is a corresponding responsibility. Mayor Landrieu stated that the future of America lies in finding the right balance between the tension of rights and responsibilities. Mayor Landrieu thanked the members of the House for coming to New Orleans. He told delegates that they are standing in the middle of a great American success story because the city has suffered some catastrophic disasters. New Orleans suffered dramatically from a loss of tourism after 9/11, Hurricanes Katrina and Rita, as well as others, the national recession, and the BP oil spill. Mayor Landrieu stated that the people of New Orleans have demonstrated resilience. He pointed to the new Superdome, as a symbol of resurrection and redemption. He touted our country as the greatest in the world, stating that we are strong, fast, and will continue to lead the world but that we can always strive to do better. He urged lawyers to speak to the nation to help us get back to the proper balance between rights and responsibilities.
Statement by the Chair of the HouseLinda A. Klein of Georgia, Chair of the House, welcomed the delegates in the House and recognized members of the various House committees. She announced that key speeches and debates would be publicized and that the House Committee on Technology and Communications would be reporting on the proceedings of the House via Twitter @ABAhod. Chair Klein announced that complimentary copies of the Judges’ Journal from the Judicial Division were available. She urged delegates to review the article from President Robinson on the funding crisis of state courts. She recognized the Committee on Rules and Calendar and reminded members where they could find the House Rules of Procedure. Chair Klein introduced the Tellers Committee and reviewed procedures for speaking. Chair Klein announced that at the 2012 Annual Meeting, the House will elect one member to the Committee on Scope and Correlation of Work. The position will be a five-year term. She encouraged those interested in the position to contact members of the Scope Nominating Committee and submit an application by March 16, 2012. Chair Klein emphasized the value of ABA membership and encouraged House members to ask all of the lawyers in their firms to join and participate in the ABA’s work. She noted that this year’s membership campaign is Rewards for Referrals. Chair Klein noted that the appointments process for President-Elect Bellows is currently underway. She explained that the Fund for Justice and Education (FJE) is the Association’s charitable arm and encouraged members of the House to continue to financially support FJE programs. She asked members to consider making a donation to the ABA Legal Opportunity Scholarship Fund, which is one of the FJE programs. Chair Klein discussed the obligations and responsibilities of House members to take legislative priorities to lawmakers in Washington,D.C. She asked each delegate to be part of the Grassroots Action Team and attend ABA Day on April 17-19, 2012 in Washington,D.C. She suggested that members register early, noting that there is no registration fee prior to March 19, 2012. At the conclusion of the meeting, Chair Klein thanked the members of the House committees, the staff supporting the House committees, and the Committee on Rules and Calendar.
Statement by the SecretaryHon. Cara Lee T. Neville of Minnesota, Secretary of the Association, moved approval of the House of Delegates Summary of Action from the 2011 Annual Meeting, which was approved by the House. On behalf of the Board of Governors, Secretary Neville presented and referred the House to Report Nos. 177, 177A and 177B, the Board’s Informational, Transmittal and Legislative Priorities Reports. video that has been created about the crisis of state court underfunding. He reported that the ABA has placed a steady stream of editorials in newspapers across the country, has sent information about this problem to state and local bar leaders, and has created an online resource on our website. The response has been encouraging and has led to the development of partnerships between the ABA and business/civic associations, such as the U.S Chamber of Commerce, the Association of Corporate Counsel, and the Federalist Society. President Robinson told members of the House that the Association will continue to pursue this cause under the leadership of President-Elect Bellows and President-Elect Nominee Silkenat. He encouraged delegates to participate in Law Day 2012 where the theme will be “No Courts, No Justice, No Freedom.” The goal for Law Day is to have a rally or press conference on the steps of each state capital. An adequately funded and independent court system is the key to constitutional democracy, which is the key to our freedom. President Robinson concluded his remarks with the assurance that the ABA will never stop standing up and speaking out for our courts.
Statement by the TreasurerThe Treasurer, Lucian T. Pera of Tennessee, referred members of the House of Delegates to his written report. He reported that the Association’s finances are sound. The ABA received a clean audit for Fiscal Year 2011, after a smooth transition to new auditors. Mr. Pera discussed the downward trend in dues revenue but explained that the leadership and staff have been working hard to reverse this trend. Despite some growth in membership, Mr. Pera reported that the current projection is that dues revenue will be down slightly this year. With regard to non-dues revenue, Mr. Pera reported some growth. Looking ahead, the Finance Committee of the Board of Governors recently instructed the financial services leadership to budget for next year with the expectation that revenue will remain approximately the same as this year. As a result, the budget for Fiscal Year 2013 is going to be tight. The financial staff and volunteer financial leadership have also been instructed by the Board’s Finance Committee to prepare a coherent and sustainable plan of revenue and expenses for the next two to five years. Lastly, Mr. Pera reported that the building in D.C. sold in December 2011 with net sale proceeds of $47,000,000.00 and that the Board of Governors designated the establishment of a reserve to help defray certain real estate occupancy costs in D.C. Report of the Nominating Committee The Nominating Committee met on Sunday, February 5, 2012. On behalf of the committee, Robert T. Gonzales of Maryland, Chair of the Steering Committee of the Nominating Committee, reported on the following nominations for the terms indicated: MEMBERS OF THE BOARD OF GOVERNORS FOR THE 2012-2015 TERM District Members District 3: Thomas R. Curtin of New Jersey District 5: William T. Coplin, Jr. of Alabama District 9: John S. Skilton of Wisconsin District 14: Laura V. Farber of California District 15: Kenneth G. Standard of New York District 16: Timothy W. Bouch of South Carolina District 17: Paul T. Moxley of Utah Section Members-at-Large Section of Family Law Timothy B. Walker of Colorado Section of Taxation Kenneth W. Gideon of the District of Columbia Minority Member-at-Large Michael E. Flowers of Ohio Judicial Member-at-Large Jodi B. Levine of Oklahoma Young Lawyer Member-at-Large William Ferreira of New Jersey OFFICERS OF THE ASSOCIATION Chair of the House of Delegates for 2012-2014 Robert M. Carlson of Montana President-Elect for 2012-2013 James R. Silkenat of New York Remarks on the “State of the State Courts” The Honorable Eric T. Washington, President of Conference of Chief Justices, reported that the partnership between the Conference and the ABA has grown stronger, gained momentum, and is making a difference. As an example of the partnership, he referred to the development of standards for language access in the courts to provide equal access to justice for persons with limited English. He wholeheartedly endorsed Resolution 113 and called for its immediate passage. In addition, Judge Washington explained that a common bond between the Conference and the ABA is the protection of judicial independence. A recent threat to judicial independence has been the chronic underfunding of courts. Under the leadership of President Robinson and Past President Zack, the ABA has put the severity of the court funding crisis in the headlines. Judge Washington emphasized the importance of the rule of law in our courts. Protecting the rule of law requires more than just money; it requires an understanding of the proper role of the courts. Yet the courts’ role in our democracy is misunderstood. Both the Conference and the ABA have been working to develop innovative civics education programs. In closing, Judge Washington thanked the members of the House for their work in promoting the fair administration of justice and preservation of American exceptionalism through the protection of the courts and the rule of law. Report of House Committee on Resolution on Impact Review Christina Plum of Wisconsin, member of the House Committee on Resolution and Impact Review gave a brief report on archiving and the process used to archive policies. Committee on Issues of Concern Presentation The Committee on Issues of Concern to the Legal Profession sponsored a presentation regarding legal education. Dean John F. O’Brien, Chair of the Section of Legal Education and Admissions to the Bar, explained that the Section’s mission is to ensure that the system of accrediting law schools is fair and effective and that members of the bar are qualified to practice. He gave an overview of the council and the standards applied by the council. The standard pertaining to employment data was recently tightened to address the issues of accuracy of the data that have arisen, and the Section will continue to work to make sure that law schools are publishing accurate employment information. He reported that the Section has been sued by a school in Tennesseethat was not accredited and that the case remains in litigation. Without commenting on the merits of the case, Dean O’Brien emphasized the importance of keeping the gold standard in the accreditation process.
II. RESOLUTIONS VOTED ON BY THE HOUSEA brief summary of the action taken on resolutions brought before the House follows. The resolutions are categorized by topic areas and the number of the resolution is noted in brackets.
BAR ADMISSIONS On behalf of the Commission on Women in the Profession, Honorable Cara Lee T. Neville of Minnesota, Secretary of the Association moved and Honorable Erin Masson Wirth of the District of Columbia presented Revised Resolution 108 urging state and territorial bar admission authorities to adopt rules, regulations and procedures that accommodate the unique needs of military spouse attorneys, who move frequently in support of the nation’s defense. Estelle H. Rogers of the District of Columbia spoke in favor of the resolution. The resolution was approved as revised.
BAR ASSOCIATIONS[10A] On behalf of the Bar Association of Puerto Rico, Carlos A. Rodriguez-Vidal of Puerto Rico moved Resolution 10A urging the highest courts or legislative bodies of all states, territories and tribes charged with the administration of justice, admission to the bar, and regulation of the legal profession, to respect the organized bar’s ability and right to function independently and express its views freely. The resolution was approved.
CLIENT PROTECTION On behalf of the Standing Committee on Client Protection, Janet Green Marbley of Ohio moved Revised Resolution 105 amending the Model Rules for Fee Arbitration, dated February 2012, to refine current practices in order to increase productivity, efficiency and fairness. The resolution was approved as revised.
COURTS/JUDGES[10B] On behalf of the Massachusetts Bar Association, Richard B. Campbell of Massachusetts moved Resolution 10B supporting the consent jurisdiction of the United States magistrate judges as being consistent with and not violative of Article III of the United States Constitution. The resolution was approved. [101G] On behalf of the Criminal Justice Section, Cynthia Orr of Texas moved Resolution 101G urging federal, state and territorial courts to adopt jury instructions which are in language understandable by jurors untrained in law and legal terms, in the penalty phase of trials in which the death penalty may be imposed and such instructions should be provided to jurors in written form. The resolution was approved.  On behalf of the National Conference of State Trial Judges, Honorable Cara Lee T. Neville of Minnesota, Secretary of the Association moved and Honorable W. Terry Ruckriegle of Colorado presented Revised Resolution 112 amending the Model Time Standards for State Courts, dated February 2012, by adding a case type under the criminal category for local ordinances and by extending the length of time for the completion of the administration of estates. The resolution was approved as revised.  On behalf of the Standing Committee on Legal Aid & Indigent Defendants, Honorable Cara Lee T. Neville of Minnesota, Secretary of the Association moved and Honorable Vanessa Ruiz presented Resolution 113 adopting the ABA Standards for Language Access in Courts, dated February 2012, and urging federal and state legislative and executive branches to provide adequate funding to courts and other adjudicatory tribunals to fully implement language access services. The resolution was approved.
CRIMINAL JUSTICE[101A] On behalf of the Criminal Justice Section, Stephen A. Saltzburg of the District of Columbia moved Revised Resolution 101A adopting the black letter ABA Criminal Justice Standards on Law Enforcement Access to Third Party Records, dated February 2012, which provides 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. The resolution was approved as revised.
CRIMINAL JUSTICE (cont.)[101B] On behalf of the Criminal Justice Section, Sidney Butcher of Maryland moved Resolution 101B urging governments to adopt pretrial discovery procedures requiring laboratories to produce comprehensive and comprehensible laboratory and forensic science reports for use in criminal trials that include a number of identified criteria. The resolution was approved. [101C] On behalf of the Criminal Justice Section, Stephen A. Saltzburg of the District of Columbia moved Revised Resolution 101C urging judges and lawyers to consider a number of factors in determining the manner in which expert testimony should be presented to a jury and in instructing the jury in its evaluation of expert scientific testimony in criminal and delinquency proceedings. The resolution was approved as revised. [101D] On behalf of the Criminal Justice Section, William N. Shepherd of Florida moved Resolution 101D urging judges and lawyers to consider potential jurors’ understanding of general scientific principles, scientific principles relevant to forensic science, and preconceptions or bias with respect to forensic scientific principles in formulating jury voir dire questions. The resolution was approved. [101E] On behalf of the Criminal Justice Section, Stephen A. Saltzburg of the District of Columbia moved Revised Resolution 101E urging the federal government to request that public housing authorities and other owners of federally subsidized rental housing reevaluate their current rules regarding admission, termination, and additions to household to ensure that, while resident safety is protected, those rules do not unfairly punish persons with criminal records. The resolution was approved as revised. [101F] On behalf of the Criminal Justice Section, William N. Shepherd of Florida moved Resolution 101F supporting 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. The resolution was approved.
DISABILITY RIGHTS On behalf of the Commission on Disability Rights, Honorable Cara Lee T. Neville of Minnesota, Secretary of the Association moved and Scott C. LaBarre of Colorado presented Resolution 111 urging entities that administer a law school admission test to provide appropriate accommodations for a test taker with a disability to best ensure that the exam results reflect what the exam is designed to measure and not the test taker’s disability. The resolution was approved.  On behalf of the Tort Trial and Insurance Practice Section, Timothy W. Bouch of South Carolina moved Resolution 303 urging legislative bodies and governmental agencies to enact laws and implement policies to ensure that persons with disabilities utilizing service animals are provided access to services, programs and activities of public entities and public accommodations pursuant to the regulations implementing the Americans with Disabilities Act. The resolution was approved.
DOMESTIC AND SEXUAL VIOLENCE On behalf of the Commission on Domestic and Sexual Violence, Cheryl I. Niro of Illinois moved Revised Resolution 114 urging the Federal Bureau of Investigation to implement expeditiously the expanded definition of rape in the Uniform Crime Reporting Summary Reporting Program to include, regardless of gender, or presence of force, all forms of non-consensual penetration of a vagina or anus and all forms of non-consensual penetration by a sexual organ of any orifice. Stephen A. Saltzburg of the District of Columbia moved an amendment, which was approved. Estelle H. Rogers of the District of Columbia moved an amendment, which was approved. The resolution was approved as revised and amended.
ETHICS/PROFESSIONAL DISCIPLINE The House approved by consent Resolution 107 as submitted by the Standing Committee on Professional Discipline reaffirming the black letter of the ABA Standards for Imposing Lawyer Sanctions, as adopted February 1986 and amended February 1992, and rescinds its adoption of the Commentary thereto.
FAMILY LAW On behalf of the Section of Family Law, Marshall J. Wolf of Ohio withdrew Resolution 104 adopting the ABA Model Relocation of Children Act, dated February 2012, and urging its adoption by state, territorial, tribal and local legislative bodies.
GENERAL PRACTICE On behalf of the General Practice, Solo and Small Firm Division, Dwight L. Smith of Oklahoma moved Resolution 115 supporting and encouraging the continued efforts of solo, small firm and general practice lawyers to provide access to justice by delivery of legal services to those in need. The resolution was approved.
HUMAN RIGHTS On behalf of the Center for Human Rights, Michael S. Greco of Massachusetts moved Resolution 109 endorsing the United Nations “Protect, Respect and Remedy” Framework on Business and Human Rights and the Framework’s companion Guiding Principles for Implementing the Framework and similar principles promulgated by the Organization for Economic Cooperation and Development, and urging governments, the private sector and the legal community to integrate them into their respective operations and practices. The resolution was approved.
INTELLECTUAL PROPERTY LAW On behalf of the Section of Intellectual Property Law, Donald R. Dunner of the District of Columbia moved Revised Resolution 110 supporting in principle the long-established precedent that patent infringement must be proven by a preponderance of the evidence, and the fact that a product or process accused of infringing a patent-in-suit is itself separately patented does not alter the burden of proof, or create a presumption of non-infringement. The resolution was approved as revised.
 On behalf of the Section of International Law, Michael H. Byowitz of New York moved Revised Resolution 103 urging federal, state, territorial, tribal and local courts to consider and respect as appropriate the data protection and privacy laws of any applicable foreign sovereign, and the interests of any person who is subject to or benefits from such laws, with regard to data sought in discovery in civil litigation. Lawrence J. Fox of Pennsylvania moved an amendment. Michael H. Byowitz of New York spoke against the amendment. The amendment was defeated. Stephen P. Younger of New York spoke in favor of the resolution. Clifford E. Haines of Pennsylvania and Lawrence J. Fox of Pennsylvania spoke against the resolution. The resolution was approved as revised by a vote of 227 to 188.
LEGAL EDUCATION The House approved by consent Resolution 100 as submitted by the Standing Committee on Paralegals granting approval and reapproval to several paralegal education programs, withdrawing the approval of one program at the request of the institution, and extending the term of approval to several paralegal education programs. [106A] The House approved by consent Resolution 106A as submitted by the Section of Legal Education and Admissions to the Bar concurring in the action of the Council of the Section of Legal Education and Admissions to the Bar in making amendments to Standard 510 and Rules 3, 5 and 22 of the ABA Standards and Rules of Procedure for Approval of Law Schools, dated February 2012. [106B] The House approved by consent Resolution 106B as submitted by the Section of Legal Education and Admissions to the Bar concurring in the action of the Council of the Section of Legal Education and Admissions to the Bar in making non-substantive clarifications to Standard 512 (Student Complaints) of the ABA Standards and Rules of Procedure for Approval of Law Schools, to which the House of Delegates previously concurred in August 2011.  On behalf of the Section of Legal Education and Admissions to the Bar, Ruth V. McGregor of Arizona moved Resolution 304 concurring in the action of the Council of the Section of Legal Education and Admissions to the Bar in making non-substantive clarifications to Standard 306 (Distance Education) and Rule 20 (Major Change in the Organizational Structure of a Provisionally or Fully Approved Law School) of the ABA Standards and Rules of Procedure for Approval of Law Schools, to which the House of Delegates previously concurred in August 2011. The resolution was approved.
STATE AND LOCAL GOVERNMENT LAW On behalf of the Section of State and Local Government Law, Benjamin E. Griffith of Mississippi moved Resolution 302 supporting the principle that “private” lawyers representing governmental entities are entitled to qualified immunity from 42 U.S.C. Section 1983 claims when they are acting “under color of state law.” Robert S. Peck of the District of Columbia moved to postpone indefinitely consideration of the resolution. Robert Thomas of Hawaii, Karen J. Mathis of Colorado and J. Anthony Patterson of Montana spoke against the motion to postpone indefinitely. The motion to postpone indefinitely was defeated. Stephen A. Saltzburg of the District of Columbia moved an amendment, which was approved. The resolution was approved as amended.
UNIFORM ACTS[102A] The House approved by consent Resolution 102A as submitted by the National Conference of Commissioners on Uniform State Laws approving the Uniform Certificate of Title for Vessels 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. [102B] On behalf of the National Conference of Commissioners on Uniform State Laws, Michael Houghton of Delaware moved Resolution 102B approving 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. Robert A. Stein of Minnesota and Ellen J. Flannery of the District of Columbia spoke in favor of the resolution. Michael Reed of Pennsylvania reported that the Pennsylvania delegation no longer opposes the resolution. Talbot D’Alemberte of Florida spoke against the resolution. The resolution was approved.