Remarks by James Silkenat, New ABA President-Elect

The new ABA president-elect, James Silkenat, addressed the House of Delegates on Tuesday morning. Silkenat began by pointing out that support for the American justice system is particularly important now because of the substantial issues facing the country. He maintained that we know the impact of the lack of funding for state courts and said that “a truly independent and fully functioning judiciary is essential to what we do as lawyers.” He told the House, “We have an obligation to young lawyers entering our profession to make sure that they are equipped to handle the professional challenges ahead.

Silkenat discussed several issues he deemed to be “at the center of many of the troubles facing our country and our profession.” He started with immigration by asking: “Is the sanctity of our border so important that it leaves no room for immigrants to realize their dreams and participate in and enrich our society?” On gun violence, he asked, “Is it necessary to allow guns in our universities and our public parks in order to maintain our second amendment rights? Can’t we find some common sense protections on assault weapons and on limited sales of ammunition that will keep us all safe?” On the death penalty debate, he questioned: “Is our need to seek retribution against wrongdoers so all-encompassing that we can overlook the errors, and biases, and costs that are an unavoidable part of the death penalty system?” On election law reform, he asked: “Is our commitment to free speech underlying Citizen United so one-dimensional that we allow our constitutional leaders to be chosen more by the money they raise than by the policies they endorse?”

Silkenat also pointed out two other areas that the ABA has a responsibility to address: finding meaningful jobs for lawyers, particularly young lawyers, and making sure that everyone in our society has access to legal assistance no matter their income level or geographic location. Silkenat is a partner at the law firm of Sullivan & Worcester in New York. He will assume the ABA presidency in August 2013.

Morris S. Dees Awarded the ABA Medal

On Tuesday morning, Bill Robinson awarded the ABA Medal to Morris S. Dees, Jr., co-founder of the Southern Poverty Law Center. Robinson called Dees a “selfless public servant, passionate trial lawyer, and courageous social justice and civil rights leader.” The medal was first awarded 82 years ago, and it honors those who have given conspicuous service to the cause of American jurisprudence. Robinson said that Dees is worthy of this award “because of his steadfast fight against racism and injustice, which has positively transformed the lives of countless Americans.” He went on to say that Dees’ “contributions to the law, to human kind, and to the evolution of our nation are beyond measure,” and the presentation of the ABA Medal “represents our profound admiration for this personal courage and incomparable leadership as one of the greatest civil rights lawyers of our time.” Dees accepted his award and reflected on his time as a lawyer. He stated that being a civil rights lawyer in the deep south during the 60s and 70s was a lonely place, but being recognized with the ABA Medal erases all of that loneliness. He emphasized that “hatred still exists” and civil rights issues are still important today, singling out immigration laws and shootings that target certain ethnicities and religious groups as examples of present-day injustice.

House of Delegates Action

Recommendation 109A, proposed by the Section of Administrative Law and Regulatory Practice, “urges Congress to require 501 (c)(4) non-profits and 527 political organizations to disclose: (a) those contributions used for making electioneering communications and independent expenditures as defined in federal campaign finance law and (b) amounts spent for such communications and expenditures in public disclosure reports filed with the Federal Election Commission, according to the same requirements applicable to other political committees regulated by the Commission.” The recommendation was withdrawn. It will be revised and resubmitted at a later date. There was no opposition to the withdrawal.

Recommendation 109B, proposed by the Section of Administrative Law and Regulatory Practice and two cosponsors, “urges federal agencies to pursue regulatory cooperation with relevant foreign authorities where appropriate and consistent with their legal authority, statutory mandates, and regulatory missions.” Randolph May introduced the resolution and argued that regulatory cooperation will remove trade barriers and “will lead to sounder, more effective regulations, both here at home and abroad as well.” The recommendation was adopted without opposition.

Recommendation 109C, proposed by the Section of Administrative Law and Regulatory Practice, “urges the Federal Acquisition Regulatory Council to issue model language for use in contracts posing a high risk of either personal conflicts of interest or misuse of certain non-public information, which would subject contractor employees to new restrictions analogous to those that apply to federal employees.” In addition, the recommendation also “urges that expert advisory committees that are organized and managed by agency contractors be subject to the same ethical requirements that would apply if they were organized and managed by the agency.” The recommendation was withdrawn and will be resubmitted at a later date. There was no opposition to the withdrawal.

Recommendation 111, proposed by the Standing Committee on Gun Violence and five cosponsors, “urges the ABA to oppose governmental actions and policies that limit the rights of physicians to inquire of their patients whether they possess guns and how they are secured in the home or to counsel their patients about the dangers of guns in the home and safe practices to avoid those dangers.” William Missouri, chair of the committee, explained that this proposal is a response to a statute that was recently enacted in Florida that “prohibits physicians practicing in that state from inquiring or seeking information from patients regarding the presence of guns in the home.” The recommendation was adopted without opposition.

Recommendation 101, sponsored by the Section of Litigation and three cosponsors, “adopts the Guidelines for Retention of Experts by Lawyers, dated August 2012, and urges counsel to consider utilization of the Guidelines in retaining experts for client matters.” Larry J. Fox, a delegate of the Litigation Section from Pennsylvania, spoke first in support of the resolution, asking the delegates to remember that these are “practical, common sense, essential guidelines” for lawyers, but they are not a “rule of professional conduct or a legislative act” and therefore do not need to be followed. He maintained that the guidelines address the most important issues of their profession when retaining experts, calling the issues the four “C”s by making sure that 1. The expert is competent; 2. The expert maintains confidentiality of work he receives or produces; 3. The expert has no conflicts of interest; and 4. The expert is fairly compensated. Other supporters of the recommendation reiterated that these are merely guidelines and suggestions of best practices, and lawyers should not feel obligated to abide by them.

Ellen Flannery of the Section of Science and Technology Law opposed the recommendation, asserting that the guidelines provide little benefit while presenting significant risks. She pointed out that the guidelines are suggesting rules and best practices for other various professions, which likely already have their own codes and standards, and she questioned why the ABA needed to adopt guidelines for other professions and non-lawyers. She argued the recommendation contained a few confusing and illogical guidelines, including the advice that experts who are not competent should gain competency by consulting other experts. She contended that this advice made no sense because if an expert is not competent, he should not be considered an expert at the start. Dwight L. Smith of Oklahoma also opposed the recommendation, arguing that the guidelines are unnecessary because a lawyer who prepares for a case correctly and effectively has already done everything suggested in the guidelines. He claimed that the guidelines just “added more regulation” and were “a solution in search of a problem.” The recommendation was defeated with some opposition.

Recommendation 113, proposed by the Section of International Law and three cosponsors, “urges the Department of Homeland Security (“DHS”) to create a Haitian Family Reunification Parole Program, and immediately begin paroling into the United States already-approved Haitian beneficiaries of family-based visa petitions.” Michael Burke, chair of the Section of International Law, introduced the resolution and explained that this recommendation is consistent with the active role the association has taken in providing assistance and relief to Haitians since the earthquake in 2011. The average wait time for a Haitian to receive a visa is between 3-11 years. The proponents assert that the resolution “will reunite families as well as aid in reconstruction efforts by enabling approved family members the opportunity to wait in the United States and send remittances back to family members left in Haiti.” The recommendation was adopted with no opposition.

Recommendation 115, proposed by the Forum on Communications Law, encourages “federal, state and territorial legislatures to enact legislation to protect individuals and organizations who choose to speak on matters of public concern from meritless litigation designed to suppress such speech, commonly known as SLAPPs (Strategic Lawsuits Against Public Participation).” Charles Tobin, the chair of the Forum on Communications Law, introduced the resolution and said, “SLAPPS are inimical to the rights of free speech and are a danger to this democracy.” The recommendation was adopted with some opposition.

Recommendation 116, proposed by the Section of Individual Rights and Responsibilities, “amends the 2008 policy regarding racial and ethnic profiling to include religious profiling and characteristics indicative of religious affiliation.” Mark Schickman of the ABA Board of Governors, maintained that “our country is a long way from eradicating racial and ethnic profiling, but it’s improving.” However, he claimed that since the September 11 terrorist attacks in 2001, religious profiling of Muslim and other religions has increased. The sponsors argued that religious profiling is ineffective and detrimental to the efficiency of law enforcement, and is harmful to individuals and communities. The recommendation was adopted without opposition.

Recommendation 10B, proposed by the State Bar of South Dakota, “urges federal, state, territorial, tribal, and local governments to support efforts to address the decline in the number of lawyers practicing in rural areas and to address access to justice issues for residents in rural America.” Supporters of the resolution argued that “the main street lawyer in rural America is an endangered species” and “the concentration of lawyers in urban areas, leaving rural America unserved, is devastating.” The recommendation was adopted with no opposition.

Recommendation 301, proposed by the Section of Individual Rights and Responsibilities and seven cosponsors, “urges Congress to strengthen tribal jurisdiction to address crimes of gender-based violence committed on tribal lands in the reauthorization of the Violence Against Women Act.” The recommendation was adopted.