ABA Delegates Overwhelmingly Approve Anti-Bias Rule

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By Samson Habte

Aug. 9 — A vast majority of the ABA's policy-making House of Delegates voted in favor of a rule change that will make workplace harassment and discrimination a basis for professional discipline.

The rule change was approved by a voice vote on Aug. 8, the fifth day of the bar group's six-day annual meeting in San Francisco. Only a handful of “nays” were heard when ABA Resolution 109 was presented to the 589 delegates in attendance.

The delegates approved nearly every other resolution that was put before them on Aug. 8, and most proposals passed by similarly lopsided margins.

The resolution that drew the most opposition before ultimately passing was a change to the ABA's law school accreditation standards to remove a long-standing ban that prevented law students from receiving both pay and academic credit for externships.

In other action at the meeting, the delegates voted to:

▸morph the longtime Task Force on Trade in International Services into a new permanent standing committee;

▸urge courts and legislatures to adopt rules establishing an evidentiary privilege for communications between lawyer referral services and their clients;

▸reaffirm the ABA's commitment to lawyer referral services sponsored by state and local bar associations;

▸urge jurisdictions to adopt court rules or legislation authorizing the award of class action residual funds to non-profit organizations that improve access to justice for the poor; and

▸urge the U.S. President and members of the U.S. Senate to emphasize the importance of racial, ethnic, disability, sexual orientation, gender identity and gender diversity in the selection process for federal judges; and to urge federal appellate courts to do the same in the selection process for federal bankruptcy and magistrate judges.

Black-Letter Anti-Bias Rule

The margin of the vote approving Resolution 109 may have been the most surprising development at the Aug. 8 session.

The resolution drew criticism from political conservatives and religious groups from the moment it was floated in 2015 until just a few days before its passage.

One prominent critic was former U.S. Attorney General Edwin Meese III, who said in a March 5 letter to the ABA that the proposed rule “borders on fascism” and threatened “freedom, justice and religious liberty.”

The resolution was amended several times over the last year, and several speakers said the near-unanimity of the final approval vote was attributable to last-minute changes that assuaged the concerns of constituent groups that had expressed qualms about the proposal in its earlier iterations.

In its final form, the resolution called for the addition of a new provision—Model Rule 8.4(g)—that expands the definition of “professional misconduct” to include:

conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these rules.

Some 24 U.S. jurisdictions have already amended their ethics standards to incorporate some form of an anti-discrimination rule.

Arizona State University law professor Myles V. Lynk, the chair of the ABA's ethics committee, introduced the resolution by saying that the states “have been laboratories of change” and that “it's time now for the ABA to catch up.”

Personal Stories of Discrimination

Sixty-nine ABA members signed up to speak in favor of Resolution 109, while none signed up to speak in opposition.

All but a few of the scheduled speakers waived the opportunity to address the delegation.

Oregon attorney Mark Johnson Roberts did take the podium and related an anecdote about his own experience with workplace discrimination.

“Twenty-eight years ago, when I was a new lawyer, I was passed over by a law firm's hiring committee,” Roberts said. “They decided that a gay man couldn't be a litigator. Ten years later, I was their [state] bar president.”

Wendi S. Lazar, a member of the ABA Commission on Women in the Profession, also addressed the delegates. Lazar, a plaintiffs' side employment lawyer, spoke about female lawyers she has represented in sexual harassment cases.

“I would like to share with you some of their stories, because they are invisible to many of you, and their suffering has for the most part been in silence,” Lazar said.

Lazar said some of her clients were victims of “behaviors that are unspeakable.”

“My clients have had male colleagues expose themselves in conference rooms, grope them in limousines after a hard day in the office, and threaten them that if they would not have sex in the bathroom at a retreat, they would not be promoted to lead counsel in a litigation,” Lazar said.

“These women need protection, and they need a remedy,” Lazar added. “Firms don't want to punish their partners, and judges often are reluctant to police their own. So in the end there is no justice for victims of discrimination.”

Privilege for Lawyer Referral Services

The delegates also easily passed Resolution 106, which urges courts and legislatures to adopt rules or enact statutes that would establish an evidentiary privilege for communications between bar-sponsored lawyer referral services and the clients who contact them for assistance in locating representation.

Steve Steinberg, past president of Contra Costa County Bar Association in California, said the resolution was important because of the uncertainty surrounding the question of “whether there is a privilege that would cover communications that take place in that first contact between a client and a lawyer referral service.”

Steinberg said no court has ever found that such a privilege exists, and that only one state—California—has enacted legislation creating such a privilege.

“We are aware of at least a couple of situations where opposing parties have subpoenaed lawyer referral services to get their records, to get testimony on these conversations they had with their clients,” Steinberg said.

“The uncertainty means that lawyer referral services cannot reassure their clients that conversations will be privileged and that they can be honest and open when talking about their matter,” Steinberg said. “And honest and open communication is absolutely crucial in order for a lawyer referral service to make sure that a client gets to the right place.”

David G. Keyko, chairman of the New York City Bar's Legal Referral Service Committee, said the ABA's passage of Resolution 106 would “be of major assistance” in New York, where bar authorities will ask state legislatures to create a statutory privilege.

International Trade in Legal Services

There wasn't any debate on the floor about the proposal to create a new Standing Committee on International Trade in Legal Services.

Resolution 11-7 sailed through on voice vote after speakers described why it's critical to establish an ongoing structure to deal with cross-border access to legal markets.

According to the accompanying background report, the change to a permanent entity will help the ABA continue promoting the interests of the U.S. legal profession regarding inbound and outbound access to legal services markets.

The task force was launched in 2003 during negotiations about trade in legal services under GATS, the General Agreement on Trade in Services. See 19 Law. Man. Prof. Conduct 325.

The size and activities of the task force have grown over the years as trade in services, including legal services, are negotiated in other trade agreements. For example, the Trans Pacific Partnership agreement contains a professional services annex with a specific section on legal services. See 31 Law. Man. Prof. Conduct 679.

With ongoing globalization, it's time for the ABA to put in place a standing committee that will assume the functions of the task force, the report says.

The Standing Committee on International Trade in Legal Services will perform these functions:

  •  monitor trade negotiations that impact the U.S. legal profession;
  •  coordinate the ABA's positions on U.S. lawyers' access to the legal services markets of other countries and foreign lawyers' access to the U.S. legal services market;
  •  advise the U.S. government on ABA policies relating to these issues;
  •  develop policy recommendations for ABA delegates to consider;
  •  help ABA entities implement ABA policies on these issues; and
  •  inform interested entities about international trade agreement negotiations and seek their input.

Support for Bar Associations' Referral Services

The Philadelphia bar association and other state and local bar associations asked the ABA to reaffirm its support for lawyer referral services sponsored by bar associations, and to encourage bar association referral services to comply with ABA model standards on lawyer referral services.

The delegates went along with that request and approved Resolution 10A after part of the proposal was withdrawn.

The now-withdrawn part of the proposed resolution said the ABA would “consider and thoroughly discuss with its constituent members, who are represented by state and local bar associations, in advance of approving any program or legal service initiative that may result in an individual or business hiring an attorney for a fee.”

The accompanying report makes clear the proposal was sparked by the ABA's short-lived “ABA Law Connect” venture, under which small business owners could ask an ABA member a question for $4.95 through Rocket Lawyer's cloud–based platform—and then hire the lawyer for additional advice if they wanted.

The report says state and local bars were concerned that ABA Law Connect would compete with their own lawyer referral services, which help the public, create potential business for bar association members and produce revenue that funds pro bono programs and other public service efforts.

The state and local bar associations were even more concerned that the new ABA program wouldn't meet the standards set out in the ABA Model Supreme Court Rules Governing Lawyer Referral Services, the report says.

Paid Field Placements in Law School

By adopting Resolution 100, the delegates accepted proposed changes to the ABA Standards and Rules of Procedure for Approval of Law Schools regarding academic credit for field placements in law school.

The changes beef up the standards for field placements and eliminate a prohibition against granting credit if the student receives compensation.

According to the background report, many who commented on the issue believed that granting credit for field placements would change the nature of the activity and that the supervising employer would likely assign tasks that would benefit the employer and not benefit the student’s educational growth.

Lawrence J. Fox was one of the speakers who voiced that concern. Fox said his views were shaped by his experience as a law firm partner, law school professor and director of a law school clinic.

“When we run an experiential program in a clinic, we do it in a way that is organized pedagogically,” Fox said. “If somebody as an intern comes to work at my firm, we give them an experience that is organized by whatever the latest crisis is for our clients.”

The upshot, Fox said, is that students who are allowed to take experiential positions at law firms may be assigned menial tasks that do not further their educational development.

Christopher Jennison, a 2016 graduate of Syracuse University College of Law who followed Fox and spoke in favor of the resolution, took issue with the notion that the “menial” tasks students may be assigned in paid externships are devoid of educational value.

“As a young attorney, reporting to supervisors in a law firm or a government office, who among us has not been pulled into client matters when a big deadline looms?” Jennison said. “That experience, even if it may seem menial at the time, is educational in itself.”

Jennison also stressed that the revised standards on field placements were drafted to ensure that students who participate in paid field placements are given substantive assignments that deserve academic credit.

To contact the reporter on this story: Samson Habte in Washington at shabte@bna.com

To contact the editor responsible for this story: Ethan Bowers at sbowers@bna.com

For More Information

The full list of House of Delegates resolutions, with links to the final resolution and report, is posted at http://www.americanbar.org/news/reporter_resources/annual-meeting-2016/house-of-delegates-resolutions.html.

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