ABA panel considers changes to rules, procedures

The American Bar Association House of Delegates will review proposals early next week to update model rules governing lawyer-client communications and to change rules and procedures affecting how the ABA accredits the nation’s 204 law schools.

The House, which determines association-wide policy, is made up of 601 delegates from state, local and other bar associations and legal groups from across the country.

The delegates will meet in Chicago on Aug. 6-7 at the close of the ABA’s annual meeting.

Altogether, about 50 proposals are on the House’s agenda.

The lawyer communications proposal culminates several years of work by the ABA Standing Committee on Ethics and Professional Responsibility and affiliated groups, which have shepherded the process for review of model rules related to advertising and lawyer communications with clients.

The standing committee is asking the House to approve amendments to the following ABA Model Rules: 7.1: Communications Concerning a Lawyer’s Services, 7.2: Advertising, 7.3: Solicitation of Clients, 7.4: Communication of Fields of Practice and Specialization, and 7.5: Firm Names and Letterheads.?

Proponents contend the current web of complex, contradictory and detailed advertising rules impedes lawyers’ efforts to expand their practices and thwart clients’ interests in securing the services they need.

The key changes focus on model rule provisions related to false and misleading “communications” and solicitations by lawyers.

The changes in the ABA Model Rules, which serve as recommended guidelines to state regulators, would streamline and simplify the rules and still adhere to constitutional limitations on restricting commercial speech; protect the public; and permit lawyers to use technologies to inform consumers accurately and efficiently about the availability of legal services.

For instance, “office address” would be changed to “contact information” (to accommodate technological advances), and the changes add new language to the general provision against paying for recommendations to permit nominal “thank-you” gifts.

The proposed revisions to the ABA Standards and Rules of Procedure for Approval of Law Schools also follows a lengthy review and comment process and would modify not only rules and standards, but the way the Council of the ABA Section of Legal Education and Admissions to the Bar operates.

Altogether, there are five legal education resolutions (111A-111E) before the House.

For law schools, the most significant proposed change affects the standard requiring a “valid and reliable test” for prospective law students.

While a test, such as the LSAT, would no longer be required, language would establish that a school whose admissions policy and practices are called into question is presumptively out of compliance with the standards if it does not require a valid and reliable admissions test as part of its admission policy.

In recent years, close to two dozen schools have announced they will accept the GRE in addition to the LSAT.

The council, which is recognized by the U.S. Department of Education as the sole national accrediting agency for law school education, is also seeking to eliminate both its Accreditation and Standards Review committees and fold their work into the council itself to accelerate its review of schools.

Under ABA rules, the House can either concur with the recommended changes or send them back to the Council with or without a recommendation.

The council must then resend any changes back to the House for re-consideration, but the final decision rests with the Council. 

The House is also being asked to approve a major change in how the ABA collects dues from its members.

Under the proposed new membership model, the current 157 price points would be streamlined into five, ranging from $75 to $425 depending on years of bar admittance.

Under the plan, the change would take place in the association’s 2020 fiscal year, which begins Sept. 1, 2019.

Other proposals before the House include:

• Resolution 103, which adopts the ABA Model Impairment Policy for Legal Employers, dated August 2018, to provide a mechanism within law firms to identify impairment and craft proper intervention, and to prevent professional standards and the quality of work for clients from being compromised by any legal employer personnel’s impairment.

The resolution also urges legal employers to adopt the new model policy.

• Resolution 106A, which reaffirms the ABA’s commitment to advance the rule of law and condemns the harassment, arbitrary arrest and detention, arbitrary disbarment, denial of due process, other ill-treatment and killings of judges, lawyers, other members of the legal profession and their extended families throughout the world for serving in their designated capacities.

• Resolution 114, which adopts the black letter and commentary to the ABA Ten Guidelines on Court Fines and Fees, dated August 2018, and urges governmental agencies to promulgate law and policy consistent with the guidelines, which are intended to minimize excessive penalties if an individual cannot afford to pay them.

• Resolution 118, which urges the federal government to recognize that service by persons who otherwise meet the standards for accession or retention, as applicable, in the U.S. Armed Forces should not be restricted, and transgender persons should not be discriminated against, based solely on gender identity.

• Resolution 10A, which asks states to adopt General Provisions for Regulation of Online Providers of Legal Documents to establish reasonable standards of product reliability and efficacy for online legal providers.

• Resolution 100B, which urges Louisiana and Oregon to require unanimous juries to determine guilt in felony criminal cases and reject the use of non-unanimous juries where currently allowed in felony cases.

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