Commentary: ABA considers, adopts new policies

One change involves efforts to protect lawyers from unwittingly becoming involved in a client’s criminal activities.

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  • | 2:10 a.m. September 7, 2023
Alan Pickert
Alan Pickert
  • The Bar Bulletin
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The American Bar Association wrapped up its annual meeting of the House of Delegates in Denver in August by adopting a host of new policies including a resolution that strengthens a lawyer’s obligation to assess whether a client seeks to use the lawyer’s services to further a crime or fraud before accepting or maintaining representation.

The lengthy debate on Resolution 100 divided the delegates but we eventually approved by a vote of 216-102 an amendment to Model Rule 1.16: Declining or Terminating Representation of the ABA Model Rules of Professional Conduct.

The change represents a second step this year in the ABA’s efforts to protect lawyers from unwittingly becoming involved in a client’s or prospective client’s criminal and fraudulent activities.

In February, the HOD adopted a measure that updates the ABA’s policy that endorsed for the first time “reasonable and appropriate” federal government efforts aimed at combating money laundering. The policy seeks to balance the long-standing attorney-client privilege with the demands of governmental entities seeking access to information on criminal activities.

Altogether, the HOD took action on more than 50 agenda items at its two-day meeting.

It approved a wide-ranging group of other policies, including several in the criminal justice area that outline new plea-bargaining guidelines and oppose forced labor in prisons.

Both federal lawmakers and the U.S. Department of Treasury officials have urged the ABA to strengthen its model rule on client review obligations because of concern that lawyers’ services can be used for money laundering and other criminal and fraudulent activity.

Typically, this happens in a transaction when a client asks the lawyer to hold a substantial amount of money in a client trust fund for a business deal, only to ask for the money back later because the deal purportedly did not proceed.

The amendment “tells a lawyer what the obligation is when they confront a client who wants to commit fraud or a criminal act,” said North Dakota Supreme Court Justice Daniel Crothers, who chaired one of the two ABA standing committees that crafted the amendment to the model rule.

Added ABA Treasurer Kevin Shepherd: “We know as lawyers we are not going to stick our heads in the sand and let our services be used for crime or fraud.”

Opponents said the amendment, which effectively puts in the “black letter” of the model rule what is in the comment part, adds an unfair burden to lawyers because it is too vague and exposes them to state discipline entities for what they “should have known.”

The HOD also adopted Resolution 502 which sets out 14 principles to reform plea agreements; and Resolution 503 which urges that governmental entities repeal laws that allow involuntary servitude through prison labor and ensure that all prison labor is voluntary, safe and fairly compensated.

Currently, the 13th Amendment of the U.S. Constitution, which forbids slavery and involuntary servitude, provides for an exception for punishment of crimes.

In terms of public defense, the HOD approved Resolution 603 which revises the Ten Principles of a Public Defense Delivery System, which have not been updated in two decades.

The new policy includes recommendations involving workload management for public defenders and urges public bodies to implement any necessary legal and policy changes where deficiencies may exist.

Resolution 521 urges federal courts to eliminate the mechanism that predictably assigns a case to a single U.S. District Court judge without random assignment when the case seeks to enjoin or mandate the enforcement of a state or federal law or regulation.

In recent years, activist groups have employed the practice of “judge shopping” by filing cases in districts where a single, predetermined judge is assigned a case, such as the case that was filed in federal court in Amarillo, Texas,  related to mifepristone.
In that case, recent orders of the judge and the U.S. Court of Appeals for the 5th Circuit suspended the Federal Drug Administration’s approval of the drug — decisions which were later stayed by the U.S. Supreme Court.

The HOD also adopted Resolution 509 which supports the principle that judicial review of decisions of the FDA to approve drugs be conducted under a legal standard that considers science and statutory decision-making authority.

In other notable resolutions, the HOD adopted Resolution 524 which urges U.S. governmental entities to condemn Islamophobia and also that the U.S. and U.N. member states adopt legislation and pursue actions that combat and eliminate it; and Resolution 606 which encourages governmental entities to reject proposed or repeal existing laws and policies that target and harmfully discriminate against transgender people, especially youth.

Alan Pickert, a partner at the Terrell Hogan law firm, is the American Bar Association delegate representing North Florida.