By Bryan Norris
Fellow members of the YLD: My name is Bryan Norris, and I serve as your American Bar Association State Bar Delegate, representing the NCBA YLD within the North Carolina delegation to the ABA’s House of Delegates. On February 5, 2018, the American Bar Association held its Mid-Year Meeting, where the House of Delegates considered a slate of resolutions addressing issues relevant to young lawyers as well as members of the bar at large. This blog post is intended to provide you with a recap of resolutions of potential interest to young lawyers that were considered by the ABA House of Delegates. The resolutions are grouped by subject matter, and links to pertinent documents are provided for your reference. If you have any questions or concerns about the resolutions passed at the Mid-Year Meeting, or if you would like to become more involved in the ABA and its important work, please feel free to contact me via email.
WORKPLACE EQUALITY AND CONDUCT
Resolution 10A: In November of 2017, the New York State Bar Association adopted a report drafted by an ad hoc task force of prominent New York women litigators concerning equality for women attorneys in litigation and alternative dispute resolution practice. Per the report, men appear in commercial and criminal cases and occupy the lead counsel role in litigation and alternative dispute resolution more often than women. The report found such a disparity every level of every court examined. As a result, the New York State Bar Association submitted Resolution 10A to the House of Delegates, encouraging law firms, the judiciary, corporate clients, and alternative dispute resolution providers to provide women with greater opportunities in litigation and alternative dispute resolution. The resolution passed.
Resolution 302: The legal profession, like many others, has seen a renewed focus on workplace harassment. The ABA has previously addressed such harassment among lawyers through Rule 8.4(g) of the Model Rules of Professional Conduct, which includes harassment and discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status within the definition of prohibited “professional misconduct.” Prior to this Mid-Year Meeting, however, the ABA had not passed a resolution addressing sexual harassment and encouraging specific action to combat the issue within the legal profession since 1992. Resolution 302, which passed as amended, is intended to provide guidance to employers within the legal profession on how to prohibit, prevent, and redress workplace harassment.
PUBLIC INTEREST LAW
Resolution 114: The ABA has long advocated for and sought to protect and provide the right to counsel for low-income litigants in both the civil and criminal context. However, the ABA Standing Committee on Legal Aid and Indigent Defendants and the National Legal Aid and Defender Association identified a perceived gap in the ABA’s policies towards civil litigants. In 2006, the ABA adopted a resolution advocating for publicly provided legal counsel to low-income litigants in all adversarial cases concerning “human needs,” which included “shelter, sustenance, safety, health or child custody[.]” Concerned that the 2006 resolution could be read to exclude civil cases where incarceration may result, such as a child support contempt action or an incarceration for failure to pay court-imposed fees. Resolution 114 addresses the gap by encouraging governments to provide legal counsel as a matter of right and at public expense to low-income litigants “in all proceedings that may result in a loss of physical liberty[.]” (emphasis added). The resolution also encourages courts to accept waiver of such a right only after the litigant has had the opportunity to consult with a lawyer and to offer waiving litigants the option of appointed counsel at each appearance without counsel.
Resolution 106: Congress enacted the Violence Against Women Act in 1994; it was reauthorized in 2000, 2005, and 2013, and is now up for reauthorization in 2018. In the 2000 reauthorization, Congress created the Legal Assistance to Victims grant program, which provides funding for civil and criminal legal assistance to victims of sexual assault, domestic violence, dating violence, and stalking. 98% of the grant recipients use the funds to pay for staff, civil attorneys, and victim advocates that assist an average of 28,553 victims per 6-month period. Resolution 106 encourages Congress and the President to re-authorize, raise appropriations for, and fully fund the grant program this year.
LAW SCHOOLS AND ACCREDITATION
Resolution 100: This resolution sought to address a discrepancy between Standard 106(b)(1) and Rule 30(b)(1) in the ABA Standards and Rules of Procedure for Approval of Law Schools, both of which addressed compliance of branch campuses with the Standards and Rules. Under the resolution as adopted, a school opening a branch campus must establish a plan that shows substantial compliance with the Standards and Rules and is reasonably likely to achieve full compliance within three years under both Standard 106(b)(1) and Rule 30(b)(1).
Resolution 112A: The Uniform Law Commission introduced this resolution seeking approval of the Revised Uniform Unclaimed Property Act by the ABA. The resolution was vigorously opposed by the ABA’s Business Law and Tax Law sections. The Business Law Section raised numerous objections on constitutional grounds, which have been neatly summarized in an article in Business Law Today. The Tax Law section’s objections were sounded in different concerns, including adverse tax consequences for rightful property owners stemming from the sale of securities by property holders. The resolution was postponed indefinitely.
Resolution 115C: Section 641 of the National Defense Authorization Act for Fiscal Year 2017 bucked the rule in most states concerning that the property division of military retired pay in a divorce. In most states, the division of such retirement pay is calculated using the actual amount of an individual’s retired pay; Section 641, however, pre-empts this rule and requires that the amount of divisible retirement pay be calculated as accrued on the date of divorce. The ABA adopted this resolution, which advocates for the repeal of Section 641 and a return to the legislative and judicial discretion afforded states in crafting equitable division of military pensions.
The above resolutions are just a snapshot of the 36 resolutions considered by the ABA House of Delegates at the Mid-Year Meeting, including resolutions relating to the death penalty, solitary confinement, lawyer specialization, intellectual property, and attorney wellness. I encourage you to review these resolutions to stay abreast of the ABA’s work, and look forward to discussing these and future resolutions before the ABA with you as a member of the NCBA YLD.