Vol. 29, No. 4
ABA Delegates' Report
Slow Times in the House of Delegates: Midyear Meeting Report
by Fred Rodgers
Perhaps it was because the meeting fell on Valentine’s Day, or maybe it was the margaritas and cerveza served before the luncheon honoring ABA President William Paul. Possibly it was the talented Dallas lawyers and judges in the satirical singing group "Bar None," which entertained at lunch. Whatever it was, it enabled the ABA House of Delegates ("House") to complete one of its shortest calendars in recent memory. Delegates spent only one day on the Midyear agenda and were released from their duties by 5:00 p.m.
Just before lunch, the Report of the ABA Nominating Committee was delivered, and the nominees made the traditional march with their entourages to the well of the House to be recognized and appreciated. This was an inspiring ceremony. First, the nominees for the Board of Governors were introduced, followed by Colorado’s own, newly nominated House Chair-elect Karen Mathis and followed by President-elect nominee Bob Hirschon of Maine. Mathis is only the second Coloradan in the 123-year history of the ABA to occupy this, the second highest ABA office. The first was Justice James K. Groves of Grand Junction in 1972-74. Moreover, Mathis is only the second woman ever to be elected Chair of the House; the first was incoming ABA President, Martha Barnett of Florida. There has never been a Colorado president of the ABA.
Three Reports on the Calendar
The House calendar had only three reports that engendered lengthy debate and controversy: (1) No. 8A, urging enforcement of unauthorized practice of law rules; (2) No. 8B, urging appellate courts to give reasoned explanations for per curiam decisions; and (3) No. 110, the so-termed "Pay to Play" Report. The latter amends the Rules of Professional Conduct by adding new Rule 7.6. The new rule forbids a lawyer’s acceptance of an appointment or engagement from a judge or other government official when the lawyer has contributed either to the judge’s campaign fund or to the government official in order to obtain the appointment or engagement.
All three reports passed, the first two with some limited amendments. Some feared the unauthorized practice of law Report No. 8A was a Trojan horse concealing opponents of the multi-disciplinary practice issue ("MDP"), which the House will be debating further in New York in July 2000. [ABA Delegate Bob Keatinge commented on this issue in the October 1999 edition of The Colorado Lawyer (p. 63) and reports on the MDP meetings held in conjunction with the ABA Midyear Meeting in this column (see sidebar next page)]. Others vividly described examples of unauthorized practice that seriously victimized consumers and gave the practicing bar a bad name. As often happens when rhetoric is confronted with good storytelling, the storyteller prevailed. Enforcement of unauthorized practice of law rules was approved.
On the appellate opinions issue (No. 8B), the debate was framed by lawyers who expressed concern at the negative reaction of clients to terse, one-word decisions by appellate tribunals, contending it disserved public trust and confidence in the judiciary. Floor amendments did lead to removal of a provision urging inclusion of the operative facts in the opinion. As approved, Report 8B urges appellate courts, at a minimum, to provide, in case dispositions, reasoned explanations for their decisions, unless the appeal is determined to be wholly without merit.
On the Pay to Play issue (No. 110), SEC Chair Arthur Levitt made the telling argument that news media criticism would hurt lawyers if the House did not pass the proposed ethics rule. Despite Chair Levitt’s suggestion of the corrupting effect such contributions have on public confidence in the political system, the spirited debate focused on the question of limiting political contributions as an infringement of a lawyer’s First Amendment right of political expression.
At the Annual Meeting in Atlanta in August 1999, the House passed Report 123, a corollary to Report No. 110, which amended the Code of Judicial Conduct to forbid a judge’s acceptance of campaign contributions above a locally established ceiling. That debate was of similar character, namely that the public does not trust lawyers and judges when judicial campaign fundraising is afoot. While elected judges are wont to point out that lawyers contribute, not to get results, but to put in office a judge who is fair, smart, courteous, and savvy, the public is cynical and not having any of it. The House acted to approve the new ethics rule forbidding a lawyer’s acceptance of an appointment or engagement from a judge or government official if the lawyer contributed to the appointing authority in order to get the engagement.
Other House Business
The ABA Tax Section sponsored Report No. 103. This Report urged that, should a "flat tax" or sales tax ever be adopted by Congress, it should be simple and flat; that is, there should be no exemptions, credits, or deductions provided, even for food and shelter, as a means of favoring social or economic policies (such as a deduction for home mortgage interest as a means of favoring home ownership). After an unexpectedly lively debate, the Report failed.
The House heard from President Paul who reported that over $1 million in voluntary contributions, some from ABA sections, has been raised to sponsor ABA scholarships for law school attendance by members of ethnic minorities. Executive Director Bob Stein reported that ABA membership had reached a new high of almost 405,000 members and that the organization was in good shape. Candidates for nomination as ABA president-elect, secretary, and treasurer at next year’s Midyear Meeting addressed the Association Nominating Committee, as well as the meetings of the sections and divisions, presenting their credentials.
Readers are encouraged to let Colorado delegates know if they would like to have access to the Floor of the House to speak on any matter of special interest, or if they would simply like a guided tour to watch the action. The level of debate is sometimes high and usually is at least entertaining. The Annual Meeting in New York in July 2000 will feature the House revisiting the MDP issue, and promises to include many other interesting issues for lawyers and judges.
Watch for a report on the Annual Meeting in this space.
Sidebar . . .
A Personal Perspective on Multi-Disciplinary Practice at the ABA Midyear Meeting
by Robert R. Keatinge, ABA Delegate
As Judge Rodgers’ column indicates, the House of Delegates did not take any action directly on multi-disciplinary practice ("MDP") at the Midyear Meeting in Dallas, but MDP was clearly on everyone’s mind as the Meeting progressed. The ABA and several other groups held meetings devoted to various aspects of MDPs. A Town Hall meeting on this subject was hosted by ABA President William G. Paul and moderated by Judge Patrick E. Higginbotham of the U.S. Court of Appeals for the Fifth Circuit.1 Speaking at this meeting, Sherwin Simmons, Chair of the ABA MDP Commission, noted that no one had called a time-out on changes since the August 1999 House of Delegates Annual Meeting.
As evidence, he cited several events that had occurred since the Annual Meeting:
— The formation of a strategic alliance between KPMG, one of the big five accounting firms, and Morrision and Foerster, a California-based national law firm;
— The formation in the District of Columbia of McKee Nelson Ernst & Young, a law firm owned by former partners of King and Spalding in Atlanta, but financed with a loan from the accounting firm;
— The establishment by PricewaterhouseCoopers of a multinational firm known as Landwell;
— The fact that Anderson Legal earned $480 million in 1999 from worldwide legal services;
— The merger of Rogers & Wells and Clifford Chance of London;
— The adoption by the Law Society of England & Wales of an interim resolution (pending legislation) permitting "legal practice plus," which permits non-lawyers to associate with solicitors;
— A recommendation by the Canadian Bar Association International Practice Committee that MDPs be allowed in Canada under circumstances similar to those described in the ABA MDP Commission Report; and
— Proposed legislation in New South Wales that would permit law firms to be publicly owned as long as they are controlled by lawyers.
In addition, Simmons noted that MDP is being studied in most states and by such groups as the Union Internationale des Avocats, the Federation of Law Societies of Canada, and the Council of Bars and Law Societies of the European Union. Finally, he noted changes occurring in both multi-disciplinary and multi-jurisdictional practice, and cited the merger of Bingham Dana & Gould’s financial subsidiary with Legg Mason as indicative of change in the ancillary business of law firms as well.
The positions expressed at the various meetings ran the gamut, from the view of the majority that the appropriate response to MDPs is rigorous enforcement of unauthorized practice of law rules to the opinions expressed by others that it is already too late for the ABA to have any meaningful impact on the development of MDPs. Between the two extremes, several moderate positions were expressed.2
The opposition to ABA action on MDP was spearheaded by a group that calls itself the "ABA House Coalition for an Independent Legal Profession." The Coalition, led by Illinois Bar Association President Cheryl Niro, is sponsored by several state bar associations, principally those of Illinois, Ohio, New Jersey, and Florida. Many of these associations have passed resolutions encouraging the active prosecution of unauthorized practice of law and, in the case of New Jersey, urging the abolition of the ABA MDP Commission, which is proposing that the ABA revise its ethical rules to permit lawyers to practice law in MDPs. The Coalition held a meeting on Thursday, February 10, at which it was clear that a majority of the state bar associations represented supported the Coalition position. The Coalition relies on unauthorized practice of law prosecutions as the response to the changes brought about by MDP, although there were a few dissenting voices.
An MDP Roundtable on Friday, February 11, was sponsored by the ABA Law Practice Management Section, State Bar of Texas Corporate Counsel Section, and State Bar of Texas Professional Development Program.3 The discussion focused on MDP corporate and general practice perspectives. The Roundtable participants generally believed that the organized bar needs to respond to the changes in the profession caused by and resulting from the MDP phenomenon. Among the issues that need to be addressed, according to Anthony Davis, an ethics expert, was the limitation on the ability of lawyers to practice across state lines.
Texas Supreme Court Justice Enoch discussed the experience his state has had in dealing with Arthur Anderson and Nolo Press/Folk Law Inc. and the makers of Quiken Family Lawyer. In those cases, prosecutions of unauthorized practice of law ended unsuccessfully. In the case of Anderson, the Unauthorized Practice of Law Committee withdrew the complaint. In the Nolo/Folk Law Inc. case, as soon as a U.S. district court judge enjoined them from distributing self-help legal guides, software, and documents, the publishers went to the Texas legislature. The legislature enacted a law providing that the publication and distribution of self-help legal materials over the Internet or through other means does not constitute the practice of law.
The ABA MDP Commission held an all-day open meeting on Saturday, February 12, during which it heard a wide variety of views. That Sunday morning, the Caucus of State Bar Associations, chaired by Carolyn Lamm, discussed MDP briefly. Coalition Chair Cheryl Niro suggested that state bar representatives meet in Chicago in May 2000 to prepare their opposition to the MDP Commission’s proposals at the Annual Meeting in July 2000. The Commission proposes to change ethical rules to accommodate MDP. With only a couple of dissenting votes, the Caucus approved the resolution.
At the Midyear Meeting itself, after a debate in which the proponents made specific reference to the ABA MDP Commission proposals, Report 8A (addressing the changes in the legal profession by encouraging increased prosecution for the unauthorized practice of law) passed by a three-to-one vote. This suggests that the House is not inclined to be favorably disposed to a resolution supporting the MDP Commission Report whenever it comes before the House. Nonetheless, some new ideas were discussed informally by members of the House off of the floor. Particularly, there were discussions about forming a commission to look at multi-jurisdictional practice and the possibility of conducting a "vision study" to inquire into the future of the practice of law.
It was clear from all of these meetings that MDP and the other changes in the legal profession are getting widespread attention. While there are strong disagreements within the ABA leadership on whether the ABA should consider changing its ethical rules in response to MDP, everyone appears to recognize that the profession is changing and that some response will be necessary. It is not yet clear whether the national organized bar will be able to respond effectively to these changes. The ultimate decisions with respect to the practice of law may be made at the state level (unless, as in the case of lawyer advertising, the matter is resolved through federal action). Decision-makers, for example, may be state bar associations (if they are willing to make such decisions), state courts (if they are forced to), and individuals and firms (if they feel the need to). Thus, the most effective contribution the ABA might make to the discussion will be to inform these decision-makers in the legal profession about the changes in the practice of law.
1. The Town Hall meeting was broadcast on the Internet so that people throughout the world could watch: the video Internet feed will be available until May 2000, either directly (http://www.video newswire.com/ABA/021300/) or through a link from the ABA MDP home page (http://www.abanet.org/cpr/multicom.html). Consistent with much of the ABA MDP Commission’s work, technology was used to provide current information to a large number of participants. As an example, the Town Hall meeting received a question from an ABA member in Turkey during the question period.
2. Among the groups considering MDP during the Midyear Meeting were the National Association of Bar Presidents, Caucus of State Bar Associations, Association of Professional Responsibility Lawyers, ABA House Coalition for an Independent Legal Profession, ABA Commission on Multi-Disciplinary Practice, ABA Law Practice Management Section, and the ABA Young Lawyer’s Division.
3. Among the participants were Texas Supreme Court Justice Craig Enoch; Texas UPL Task Force Chair Brent Clifton; Exxon Mobil Development Company Chief Counsel Skip Maryan; Sherwin Simmons; Anthony Davis, an ethics and professional responsibility expert with offices in Colorado and New York, and other corporate counsel; and other ABA and Texas bar leaders.
Frederic Rodgers served as a CBA delegate in the ABA House of Delegates from 1993 to 1999, when he was elected to the House as a delegate of the Judicial Division for a three-year term. Readers may contact him at (303) 582-5323 or firstname.lastname@example.org. Other ABA delegates are as follows: James Carr, (303) 866-5283, email@example.com; Robert R. Keatinge, (303) 295-8595, rkeatinge@holland hart.com; Diane H. Mauriello, (970) 476-0300, dacpc@vail. net; Karen Mathis, (303) 571-4500, firstname.lastname@example.org; David Wood, (970) 482-2727, email@example.com; Professor Mark Jay Loewenstein, (303) 492-8047, firstname.lastname@example.org. edu; Judith H. Holmes, (303) 629-6200, email@example.com; Professor Timothy Walker, firstname.lastname@example.org; Judge Sandra Rothenberg, (303) 861-1111, email@example.com; Carolynne C. White, (303) 628-6473, firstname.lastname@example.org. co; and Paul J Willumstad, (719) 543-3422, email@example.com.
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