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February 11, 2013

ABA House Passes Resolutions on Ethics Guidelines and Human Trafficking During Midyear Meeting

The ABA House of Delegates debates on policy proposals at the Midyear Meeting in Dallas.

The ABA House of Delegates debates on policy proposals at the Midyear Meeting in Dallas.

Policy resolutions relating to foreign lawyers, human trafficking victims and the unbundling of legal services were adopted when the _’s House of Delegates met as part of the association’s Midyear Meeting Feb. 6-11 in Dallas.

The ABA’s Commission on Ethics 20/20 brought four resolutions to the House of Delegates as a result of increased globalization and technological advancements.  Resolution 107A, as revised, amends Rule 5.5(d) of the ABA Model Rules of Professional Conduct (Unauthorized Practice of Law; Multijurisdictional Practice of Law) to permit limited practice authority for foreign lawyers to serve as in-house counsel in the United States, but not advise on the law of a U.S. jurisdiction except in consultation with a U.S.-licensed lawyer.  A complementing resolution, 107B, as revised, provides a mechanism to implement the limited practice authority in Resolution 107A through amendments to the 2008 Model Rule for Registration of In-House Counsel.  Resolution 107B contains additional restrictions on the foreign in-house lawyer’s scope of practice as well as added requirements, including payment of bar dues, payment into the client protection fund, fulfillment of continuing legal education requirements and notification to disciplinary counsel.

Resolution 107C, as amended, amends the Model Rule on Pro Hac Vice Admission to provide judges with guidance about whether to grant limited, temporary and supervised practice authority to foreign lawyers to appear in U.S. courts, consistent with the rules of the U.S. Supreme Court, numerous federal courts and at least 15 U.S. states.  Finally, resolution 107D adds language to Model Rule 8.5 of the Model Rules of Professional Conduct concerning choice of law, to allow lawyers and clients to specify a particular jurisdiction’s conflict of interest rules for purposes of determining the “predominant effect” of a lawyer’s conduct.

Speaking about the passage of the resolutions, Bellows said, “The ABA is responding to the globalization of our profession.  Across the country — from Main Street lawyers to global firms — the legal profession increasingly requires the expertise of foreign lawyers to advise their clients on the appropriate country laws.”

Across America, there are hundreds of thousands of human trafficking victims, suffering from unspeakable atrocities, unable or unwilling to seek out help due to fear of abuse, threats to their loved ones or financial obligations.  A series of resolutions — 104F, G, H and I, as revised — encourages the creation of policies so that victims of human trafficking are not prosecuted for nonviolent offenses committed in conjunction with the trafficking; allows victims to assert an affirmative defense of being a human trafficking victim; allows trafficking victims to seek to vacate criminal convictions involving prostitution and other nonviolent offenses that are a direct result of the trafficking; and urges bar associations to develop more training programs to help identify trafficking victims.

“As a result of these resolutions, I am proud to say that it is the new policy of the ABA to fight human trafficking and protect victims by mobilizing lawyers, judges, bar associations and law enforcement,” Bellows said.  “We now have policies and a specific action plan to combat one of our country’s most significant crises that threatens the most vulnerable in our society.”

Resolution 110B, also adopted by the House of Delegates, supports disclosure of political and campaign spending, and urges Congress to require organizations not required by current law to disclose the source of their funds used for electioneering communications and independent expenditures.

“New ABA policy to broaden disclosure about the source of money for political spending increases transparency and gives voters the information they need to make informed decisions.  Making the amount spent on political communications widely available is in the public interest and will instill greater confidence in our electoral system,” Bellows said upon passage of resolution 110B.

A growing number of people are forgoing the assistance of a lawyer when confronted with civil issues and are addressing their matters through self-representation.  Lawyers who provide some of their services in a limited scope facilitate greater access to competent legal services.  Resolution 108, as amended, encourages practitioners, when appropriate, to consider limiting the scope of their representation, as a means of increasing access to legal services.

Additional resolutions that were adopted include:

  • 104E, as revised, which urges jurisdictions to ensure that defense counsel investigate a juvenile defendant’s immigration status and inform the defendant of possible collateral consequences;
  • 104A, as revised, which urges Congress to establish an independent Center for Indigent Defense Services to assist states and other governments with their constitutional obligation to provide effective assistance of counsel for the defense of accused indigents;
  • 10A, which urges federal elected officials to adequately fund the federal courts and the Legal Services Corporation as they negotiate deficit reduction; and
  • 102B, which approves the Uniform Deployed Parents Custody and Visitation Act, promulgated by the National Conference of Commissioners on Uniform State Laws.

All resolutions and action on them can be found here.