The NLJ's ABA Annual Meeting Blog

Prosecutors chose not to talk about Ted Stevens

We hoped for some ripped-from-the-headlines remarks on the first morning of the ABA's annual meeting. Representatives from the U.S. Attorney’s Office in Chicago and the U.S. Department of Justice’s Public Integrity Section were invited to sit on a panel discussing public corruption investigations and government ethics.

But alas they didn't come.

The discussion that proceeded without them focused partly on proposed amendments to Federal Rule of Criminal Procedure 16, the rule requiring prosecutorial disclosure of exculpatory evidence that took center stage in the botched case against former Alaska Sen. Ted Stevens. The Justice Department is reviewing the issue. The Judicial Conference’s Committee on Rules of Practice and Procedure is also considering an amendment to the rule.

“These are issues that are pending before [Attorney General Eric] Holder, and they’re not in a position where they can speak definitively,” said moderator Patrick Collins in explaining Justice’s reluctance to take part despite his invitation.

Collins is a former federal prosecutor himself and now a partner with Perkins Coie in Chicago. The panel also featured U.S. District Judge Amy St. Eve, former D.C. Circuit Judge Abner Mikva and Chicago defense lawyer Ed Genson.

ABA says hands off us

Whatever the ABA may think of greater regulation of other industries, it’s generally not in favor of more federal oversight of lawyers. Rep. Barney Frank’s bill to create the Consumer Protection Financial Agency is just the latest legislation on its target list.

In an interview while attending the ABA’s annual meeting, outgoing President H. Thomas Wells Jr. said the association is working to thwart language in H.R 3126 that might end up regulating some lawyers, such as tax attorneys, under the label “financial advisors.” Frank, who chairs the House Financial Services Committee, introduced the legislation earlier this month. The bill doesn’t yet have a Senate companion.

“In part, we view it as a lawyer independence issue,” Wells said. “Lawyers in this country have historically been regulated by the states. In general, we are opposed to federal regulation of the profession.”

To fight the legislation, the ABA has ramped up its financial markets regulatory task force led by former FDIC general counsel William Kroener III, now a partner with Sullivan & Cromwell in Washington and Los Angeles, and former SEC general counsel Giovanni Prezioso, now a partner at Cleary Gottlieb Steen & Hamilton in Washington. For now the association has a draft resolution on the issue in a holding pattern, but Wells is hoping the House of Delegates will move ahead next week to approve a general set of principles with respect to financial services regulation, he said.

The effort is the latest in a string of battles the ABA has waged this year against increased federal regulation of the industry. The association won one round this week when it successfully pushed the Federal Trade Commission to delay enforcement of new rules designed to prevent identity theft. The ABA has been lobbying for months to have lawyers exempted from the rules, calling them burdensome regulation as applied to the legal profession.

The ABA may also weigh in with an amicus brief in the Supreme Court’s review of Milavetz, Gallop & Milavetz v. United States, a suit over the application of certain provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 to lawyers and law firms. The House of Delegates will review that issue when it meets early next week.

Wells doesn’t favor cutting membership rates

Cutting ABA membership rates isn't the answer to shoring up lawyers' interest in joining the professional association, outgoing ABA President H. Thomas Wells Jr. said in an interview.

"The surveys that we have done have given some mixed signals on that," Wells said. "If we thought that halving the rates would double membership overnight, we would have done that."

Still, some within the organization, including President-Elect Carolyn Lamm, have suggested that lowering rates for some members might increase the appeal to certain groups of lawyers, such as young attorneys, public-interest lawyers and judges. Lawyers who have passed the bar in the past year are admitted free of charge, and after that there’s a sliding fee scale that climbs from $125 to $399 per year.

While Wells is concerned about meeting lawyers’ needs amid the recession’s job-cutting, he has ideas other than cutting the ABA rates. For instance, just last week the association started a new service on its Web site where lawyer job openings are posted, Wells said. The association’s publications, continuing education programs and webinars are also important association resources for lawyers in tough times, he said.

“The most important time to be a member of the ABA is when times are tough,” Wells said.

'Justice for Sale?'

Lawyers on the panel “Justice for Sale?: Contributions to Judicial Elections in the Wake of the Supreme Court’s Decision in Caperton v. Massey” agreed that it’s time for more states to craft rules determining when judicial recusal is appropriate and to consider restrictions on political contributions.

Attorney Meryl Chertoff, director of Georgetown University Law Center’s Sandra Day O’Connor Project on the State of the Judiciary (and, yes, wife of former Homeland Security Secretary Michael Chertoff), suggested that how judges are elected should also be part of the discussion. Although there has been much criticism of the whole process of electing judges, Chertoff did say that it works well in some states.

“This is a rule-of-law case,” she said. “At the same time we’re exporting the rule of law all over the world, we left the back gate open.”

With respect to the parameters defining a “significant” political contribution, $3 million may be appropriate in one state while $30,000 is appropriate in another, Chertoff said. In fact, Montana is considering a $250 limit, while Georgia is reviewing $5,000, said Keith Fisher, a former law professor who authored two amicus briefs on behalf of the ABA in the Caperton case.

“We’re going to see a lot of experimentation,” Fisher said.

Still, the panelists noted that ABA rules of conduct for judges on the recusal issue, which were adopted by the association in 1999 and which left blank some dollar amounts so states could determine their own, have largely been ignored with few states adopting the rules. Fisher was at a loss to explain why.

“This has sparked so much public debate that I think the states realize they need to revisit this,” Fisher said after the discussion.

If states are waiting for a further cue from the ABA, it’s coming. Attorney Bill Weisenberg, who moderated the panel and leads the association’s Standing Committee on Judicial Independence, said the committee will solicit input from state bar associations, ABA affiliates and others starting next month over a 30-day period and develop a proposal for review at a February meeting of the ABA’s House of Delegates.

In the June 8 Caperton decision, the Supreme Court ruled in a 5-4 split that Justice Brent Benjamin of the West Virginia Supreme Court of Appeals should have recused himself from a case in which the chief executive of the company being sued had spent more than $3 million to support Benjamin’s election to the court.

“The states need guidelines and this is a teachable moment,” Weisenberg said after the discussion.