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

CHICAGO, Feb. 6, 2012—The _ has adopted new policy on a number of key legal issues.  The association’s 560-member House of Delegates met today during its Midyear Meeting.

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.

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.

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.

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.

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.

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.”

With nearly 400,000 members, the _ is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

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