ABA considers proposed changes for professional misconduct rules this month

The American Bar Association House of Delegates, which determines association-wide policy, will take up a proposed resolution at the upcoming ABA Annual Meeting that would permit law school students to earn academic credit and compensation for externships at the same time.

The House — made up of 560 delegates from state, local and other bar associations and legal groups from across the country — meets Aug. 8-9 at the Moscone Center in San Francisco. The wide-ranging resolutions also include an amendment to the model rule for professional misconduct to add an anti-discrimination and anti-harassment provision; a proposal to urge legislatures to abolish “offender funded” probations systems supervised by private, for-profit firms; and initiatives that expand ABA efforts to diversify the legal profession.

In Resolution 100, the House is being asked to concur with changes to the ABA Standards and Rules of Procedure for Approval of Law Schools, including provisions that address experiential learning and study outside the law school
classroom setting. The approved changes by the ABA Council for the Section of Legal Education and Admissions to the Bar remove the prohibition on students receiving compensation for work done in a credit-bearing externship program.

They also impose additional requirements to assure that externship programs are quality educational experiences for participating students.

Resolution 109 would add language to Rule 8.4 dealing with professional misconduct to specifically address harassment and discriminatory conduct by a lawyer based on race, religion, sex and disability and LGBTQ status when such conduct is related to the practice of law. Currently, similar language is included in a comment to the model rule and is not considered as authoritative as specific language would be. ABA model rules, which support professional standards, serve as guides for state regulatory bodies that govern the legal profession.

With estimates that a Spanish-language Miranda warning is needed nearly 900,000 times per year, Resolution 110 urges federal, state, local and territorial law-enforcement authorities to provide a culturally, substantively and accurate translation of the warning in Spanish. Fifty years ago, the U.S. Supreme Court declared in the historic case of Miranda v. Arizona that whenever a person is taken into police custody, he or she must be told of the Fifth Amendment right not to make any self-incriminating statements before being interrogated.

Resolution 111B asks state, local, territorial and tribal legislatures to abolish “offender funded” systems of probation supervised by private, for-profit companies. More than a dozen states have privatized probation for misdemeanors, as the industry’s pitch caught on with court systems looking for ways to save money and ensure collection of what they are owed. The offenses involved in private probation systems are typically misdemeanors, quasi-criminal ordinance violations or civil infractions that typically do not lead to jail sentences except for when fines are not paid.

Other resolutions cover:

• Diversity and inclusion: Two separate resolutions seek to accelerate ethnic diversity on the federal bench as well as generate opportunities in legal services for diverse attorneys at all levels of responsibility. Resolution 102 urges the U.S. president and “appropriate parties” to recognize the importance of racial, ethnic, disability, sexual orientation, gender identity and gender diversity for the judiciary. Resolution 113 calls for all providers of legal services, including law firms and corporations, to expand and create opportunities for diverse attorneys and urges “clients to assist …and to direct a greater percentage of the legal services they purchase … to diverse attorneys.”

• Children’s issues: Resolution 111A urges legislatures to ensure there are strong criminal laws to combat internet “grooming tactics” that target children and make them vulnerable to victimization. “Grooming” is used by sexual predators to manipulate young people they target online to meet with them offline. Resolution 115 asks legislators to adopt policies, particularly affecting schools and prosecutorial offices, to eliminate the “school to prison pipeline” by attacking systemic inequities in education and over-discipline resulting in disparate school drop-out or “push-out” rates and juvenile justice system or prison interactions.

• Jury selection: Resolution 116 amends the list of those groups that should not be excluded from jury service to include marital status, gender identity and gender expression. A second part recommends that jurors be educated as to implicit bias and how to avoid such bias in the decision-making process.

All resolutions currently filed can be found online at www.americanbar.org. No proposal constitutes association policy unless and until the House of Delegates adopts it. Some offerings may be withdrawn while other measures may be submitted. Any measure can be amended until it is taken to a vote.