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February 6, 2012

State and Local Bar Regulation, Law Enforcement Access to Third-Party Records, and Standards for Language Access Adopted as ABA Policy

The _ has adopted new policy on a number of key legal issues.  The association’s 560-member House of Delegates met Feb. 6 during its Midyear Meeting.

Among highlights:

Bar Independence

Some legislatures have sought recently to regulate the ability of state and local bar associations to function independently and freely represent the views of their members.  In bringing the resolution to the house, Carlos A. Rodriguez-Vidal described that in Puerto Rico a political faction opposing the bar association’s positions on certain issues acted to limit the bar association.  Specifically, Rodriguez-Vidal said critics were seeking to silence the bar’s speech and limit its membership and dues.  Recommendation 10A, brought to the House by the Bar Association of Puerto Rico, urges the highest courts or legislative bodies of states and territories charged with the administration of justice, to respect the organized bar’s ability and right to function independently.

Law Enforcement Access to Third-Party Records

Striking the appropriate balance between the need for law enforcement to have access to records by institutional third parties, and the privacy interests and implications on social participation, can be a challenge.  There is currently no structure through which legislatures, courts acting in their supervisory capacity and agencies to make the difficult decisions as to what records should be protected and the scope of such protection.  Resolution 101A, as amended, adopts the black letter ABA Criminal Justice Standards on Law Enforcement Access to Third Party Records, which provides such a framework through which to do so.  In speaking on behalf of the resolution, Stephen Saltzburg—of the Section of Criminal Justice, which brought the resolution to the house—noted that the resolution had no bearing on constitutional law.

Language Access in Courts

Resolution 113 adopted the ABA Standards for Language Access in Courts, and urges federal and state legislative and executive branches to provide adequate funding to courts to fully implement language access services.

Therapeutic Courts

For two decades, rehabilitative sentencing alternatives, such as drug and domestic violence courts, have made positive inroads in reducing recidivism and costs associated with incarceration.  Noncitizens, however, cannot avail themselves of the benefits of therapeutic courts, which results in an inequity with a high personal cost to the individual, his or her family and community, and society as a whole.  Recommendation 101F lends the ABA’s support to 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.

Uniform Electronic Legal Material Act

A resolution, 102B, adopted by the House, approved the adoption of the Uniform Electronic Legal Material Act—promulgated by the National Conference of Commissioners on Uniform State Laws in 2011—as appropriate for states wanting to adopt specific substantive law on the subject.  The act establishes an outcomes-based, technology-neutral framework for providing online legal material with the same level of trustworthiness traditionally provided by publication in a law book.  Talbot “Sandy” D’Alemberte questioned the lack of specific standards given it was a uniform act. Other speakers, however, noted that evolving technologies made specific standards undesirable and untenable.

UN’s “Protect, Respect and Remedy” Framework

A groundbreaking framework, adopted by the United Nations Human Rights Council, has emerged to address the responsibilities of transnational corporations and other business enterprises with respect to human rights.  The outline rests on three pillars: the state’s duty to protect the human rights of its people; the corporate responsibility to protect human rights; and the need for more effective access to remedies.  Recommendation 109 gives the ABA endorsement to the framework, and urges governments and the legal community to integrate into their respective operations and practices the United Nations Framework and Guiding Principles, as well as the “human rights” provisions of the OECD Guidelines for Multinational Enterprises.

Additional policy includes:

  • Resolution 101C, as revised, which urges judges and lawyers to consider a number of factors in weighing the use of expert testimony, such as whether the testimony of uniqueness is based on valid scientific research, whether experts present testimony that is accurate and fairly conveys the significance of their conclusions, and whether to include jury instructions with specific information so that the panel can fairly assess the reliability and weight of such expert testimony
  • One (101D), urging judges and lawyers to consider potential jurors’ understanding of scientific principles relative to forensic science, as well as their preconceptions or bias with respect to such principles.
  • Recommendation 101G, which urges courts to adopt jury instructions that are in language understandable by jurors—untrained in law—in the penalty phase of trials in which the death penalty may be imposed, and that such instructions be provided in written form.
  • Resolution 108, as revised, which urges state and territorial bar admission authorities to adopt rules and procedures that accommodate the unique needs of military spouse attorneys who move frequently in support of the nation’s defenses.
  • Recommendation 111, which 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, supporting the principle that “private” lawyers representing governmental entities are entitled to claim the same qualified immunity provided “government” lawyers when they are acting “under color of state law.”

Comments (1)

  • Mark Holtz
    4:18 PM July 22, 2012

    By looking at the ABA newsletter, I learned that the ABA takes an interest in Congressional legislation and provides recommendations on certain issues that some people might consider lobbying. It associates itself with various philanthropic causes, and it provides advice to people to keep their medical care givers informed so that they do not wind up like Terri Schiavo. The newsletter is interesting but I already knew the the ABA lobbies, tries to make itself seem benign and philanthropic in the public eye, and likes to get people involved in preparing legal papers for which the services of an attorney are usually involved.

    Sending the newsletter around seems like an exercise in damage control after the beatings the reputations of the legal profession and judiciary have recently been taking. Where the deficiencies of the ABA are apparent is in the maintenance of legal ethics for attorneys, the establishment of effective legal protections for the majority of Americans who cannot afford the services of an attorney, and the monitoring of the performance of judges in light of established standards of ethics. As for being reactionary, I would classify the ABA as being just a little less reactionary than the Communist Party. In fact, the legal profession has been in the fore-front of radical changes in the standards of legal ethics, in the elimination of jury trials, in the breakdown of due process in criminal cases, and in the usurpation by judges of powers that were formerly considered to belong to juries, legislatures, or parents.

    While it is apparent that all of the ills that beset American society were not created by the ABA, a great many of them have been produced by the profession that the ABA represents. As I see it, the ABA has some critical problems to solve quickly in order to avoid becoming an object of general scorn and contempt by the entire American public. I fail to see that there is any initiative within the ABA to tackle these problems. Here are just a few of them:

    1. Perjury has become a national sport, and government officials, including prosecutors and even agency scientists, have become the most frequent culprits, knowing, of course, that they will not be subject to prosecution or censure. Federal Circuit judges recently set a higher standard of evidence to prove that a Federal employee lied than the standard necessary to sentence someone to death.

    2. Pro se lawsuits are often summarily dismissed with comments indicating that the judge did not even understand what they were about, and dismissals are often approved by appeals courts before the submissions are even read.

    3. What should be a simple matter of obtaining documents under the Freedom of Information or Privacy Act has become an ordeal lasting years due to the failure of the courts to take appropriate action against agency employees who make it a sport to violate these laws.

    4. Judges have given themselves such a wide latitude in interpreting or disregarding laws they do not personally agree with that nobody can tell in advance how a lawsuit will be decided, even when the law and facts indicate that it should only have one outcome.

    5. The judiciary has created a system under which the assignment of the judge is more important to the outcome than the law or facts.

    6. Judges know that they can decide lawsuits at whim because they are not accountable for any of their actions.

    7. For taking bribes and other blatant criminal violations, judges can expect that years will pass before they suffer any consequences, and there is little likelihood that they will suffer consequences, at all.

    8. Whistleblowers are still persecuted for the rest of their lives through dismissal, blacklisting, and loss of professional accreditation. Both lawmakers and the courts have established methods of adjudication designed to rob whistleblowers of due process and all effective means of redress.

    9. Debtors prisons have been established in the United States for the first time since the early 19th century.

    10. The only established measure of success by a lawyer is winning, regardless of the means used to win.

    The American public is often slow to learn, but once institutions start to go bad, the process continues until the public cannot avoid noticing it. The legal profession has been suffering from eroding standards for many years, but it is now showing it so conspicuously that a reaction is soon to come. During the 1960s and 1970s, it was fashionable to discard established standards of behavior. The deterioration of the social conditions throughout society was the natural result. Since 1960, such indicators of social well-being as the gap between the rich and the poor, the educational level of the average citizen, the crime rate, and the stability of the family have all moved radically in a negative direction. Legal ethics have declined tremendously. Nowhere have the professional standards of lawyers reached such depths as among those attorneys who have taken their places on the courts as judges. Spin, denial, and all efforts at improving public relations are bound to fail in the long-run, and the ABA will eventually have to face up to the crisis its members have caused.