ABA house approves misconduct rule and other policy changes

The American Bar Association wrapped up its Annual Meeting with House of Delegates adding tougher language to a professional misconduct rule, expanding financial opportunities for law students and recommending enhancements to broaden diversity and inclusion in the legal profession. The policy-making body tackled about 30 different resolutions, including a proposal to classify harassment or discrimination in the practice of law as professional misconduct.

The House adopted by voice vote a revised resolution to strengthen the language of Rule 8.4 that addresses harassment and discriminatory conduct based on race, religion, sex, disability, LGBTQ status and other factors when such conduct is related to the practice of law. Previously, language covering such behavior was included in a comment to the model rule but not considered as authoritative as specific language.

The gathering concurred with a proposal from the ABA Council of the Section of Legal Education and Admissions to the Bar that would allow law students to get credit for externships.

The vote followed a short, but spirited debate in which advocates said the change would assist students to offset the sometimes six-figure debt they incur over three years of law school.

Meanwhile, the House approved a resolution to require federal agencies to provide an online source to access material incorporated by reference into regulations.

Approximately 9,500 federal agencies use these privately-drafted IBR rules, as they are called, in a range of areas from toy and crib safety to food additive standards.

In other matters the House:

• Urged state and local entities to abolish “offender funded” systems of probation supervised by private, for-profit companies. The use of these companies has attracted national attention and earlier this year the ABA filed an amicus brief to the Cincinnati-based 6th U.S. Circuit Court of Appeals in support of a group of Tennessee plaintiffs who were jailed because they could not pay their fees (111B).

• Approved several resolutions geared to expand diversity and inclusion in the legal profession and make the justice system fairer to all. One urged 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 (102). Another called 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 (113). And for the first time the House urged federal, state, local and territorial law-enforcement authorities to provide an accurate translation of the Miranda warning protecting Fifth Amendment rights in Spanish (110).

• Added “marital status,” “gender identity” and “gender expression” to language of existing policy that said should be or on the of (116).

• Passed a resolution supporting the independence of the judiciary and the legal profession. The resolution also called on the government of Turkey to adhere to a fair hearing before an impartial tribunal applying established legal principles before suspending or dismissing a lawyer or judge from the bar or a tribunal and to commit to protect basic values as human rights and freedom of speech (10B).

• Urged legislative bodies to help eliminate the “school-to-prison pipeline” in which students of color, students with disabilities, LGBTQ students and other groups suffer disproportionately from inadequacies and inequities in the education system that contribute to their paths into incarceration (115).

The House is made up of 589 members representing state and local bar associations, ABA entities and ABA-affiliated organizations.