The NLJ's ABA Annual Meeting Blog

ABA ends meeting as 'the club that's made for you and me'

The final headcount was 7,017 ABA member registrants, as of Monday, plus 1,540 guests for a total of 8,557 legal enthusiasts showing up in Chicago for the largest legal trade organization’s annual meeting.

In conclusion, Carolyn Lamm told attendees that, in her first act as the new ABA president, she was taking them all to Disney World. The meeting wrapped with a round of the Mickey Mouse Club song, in honor of the mid-year meeting set for Orlando, Fla., next February. Proceedings there will unfold at the Walt Disney Swan and Dolphin hotels.

Members left the Chicago gathering with a rice-crispy gift in the shape of Mickey’s head.

Patent resolutions get thumb's up from House of Delegates

Among the last acts of the annual meeting, the ABA House of Delegates adopted several resolutions of importance to the intellectual property bar, including one that will allow the ABA to file an amicus brief in what's expected to be a landmark case before the Supreme Court.

The ABA can now file an amicus brief in Bilski v. Doll, a case about business method patents that was granted certiorari by the Supreme Court last November. The case asks whether a “process” must be tied to a machine or transform something into a different state in order to be eligible for patent protection and whether that test contradicts congressional intent.

It’s the most important patent case to be taken up by the high court in 50 years, said Rob Lindfjeld, secretary of the ABA’s Intellectual Property Law Section.

“We’re really worried that the Supreme Court will do considerable damage to patents in the area of methods of doing business that should be entitled to protection and swing the pendulum way too far and hurt the patent system for a long time,” Lindfjeld said in an interview.

The proposed ABA amicus brief, as laid out in the resolution, will argue that the patent owners in Bilski v. Doll aren't eligible for a patent because they're trying to patent an abstract idea, explained Lindfjeld, who is general counsel and chief IP counsel at Woburn, Mass.-based Nantero Inc.

“It’s great that the ABA is going to weigh in on Bilski because it’s one of the more important cases that the Supreme Court has faced on patents,” said Mark Partridge, an ABA member and an attorney with Pattishall, McAuliffe, Newbury, Hilliard & Geraldson in Chicago.

Another set of IP resolutions adopted by the House of Delegates aims to improve the way in which claims of inequitable conduct are handled in court. The argument that the patent holder engaged in inequitable conduct before the U.S. Patent Office and that the resulting patent is thus unenforceable is a common defense in infringement cases. The ABA resolution calls for the defense to be restricted but not eliminated. (Such evenhandedness is not surprising given that lawyers in the IP bar often represent both defendants and plaintiffs.)

"People assert inequitable conduct almost too freely. What it does is clog up the courts, and it unfairly punishes people for conduct in which they could be completely uninvolved,” Lindfjeld said. “It has been used as a Draconian weapon by defendants in patent litigation.”

ABA president-elect ponders how to teach teens about civics

President-Elect Stephen Zack, who will become the ABA’s first Hispanic leader in 2010, is making plans for his tenure. Today he announced that he wants to launch an ABA initiative that will ask schools to make classrooms available so that lawyers can teach children about civics over a three-day holiday weekend.

“Probably the greatest concern we have in this country today" is high school students' failure to understand the most fundamental principals of our government,” said Zack, an administrative partner with Boies, Schiller & Flexner in Miami.

Zack, who spoke about the idea for an "ABA academy" at the ABA annual meeting, hopes to kick off the program on President’s Day weekend in early 2011. Students who complete the curriculum would receive a certificate that, Zack hopes, law firms will then accept as a kind of pass for a one-day visit to those firms to learn about the legal profession. He will also ask the students to agree to read the Declaration of Independence every Fourth of July.

“We want to start to change the very fabric of our society,” he said.

Six months ago, Zack called on members of the National Conference of Bar Presidents to lobby legislatures to change the curriculums in the 31 states where a civics course isn’t currently required for high school graduation.

Chicago too has cops and citizens who lose their cool

Cameras in squad cars may help the city of Chicago bring down the cost of settling police abuse cases, said Mayor Richard Daley in response to a reporter's question at the ABA annual meeting.

Recordings from the cameras will allow the city to show that, in some instances, individuals used abusive language toward officers prior to those officers taking allegedly excessive action, said Daley, who addressed the ABA House of Delegates this morning.

“People, unfortunately, they lose their cool far too many times,” he said. “That’s where the problem is.”

Chicago last year spent $58 million settling cases of alleged police abuse. Some of those cases began more than a decade ago, Daley noted. Many are tied to former Chicago Police Commander Jon Burge, who last year was indicted by the U.S. Attorney’s Office in Chicago for perjury related to alleged torture under his command in the 1980s.

Still, not everything happened long ago. This year a Chicago police officer pleaded guilty to federal charges after the discovery of a 2005 tape showing him beating a man in a wheelchair.

“Like anything else, people have a right to sue because of conduct by an individual that went far beyond the law and became physically abusive,” Daley said.

Lamm's other priorities

During her one-year term, which starts tomorrow, incoming ABA President Carolyn Lamm will seek to boost the association’s political advocacy in Washington, increase diversity in the profession and position the ABA for technological and international changes.

In a speech to the House of Delegates on Monday, Lamm laid out those three objectives, in addition to two others already discussed here, including softening the impact of the economic recession and boosting ABA membership.

Lamm, a White & Case partner who has worked in Washington since the early 1970s, wants to use the ABA’s bully pulpit in the nation's capital to support the rule of law, access to justice, and the legal profession generally. The ABA’s government affairs office currently has about 18 employees, including 10 lobbyists, said Tom Susman, director of the office. Building up the ABA’s profile won’t mean expanding the office but rather tapping members’ Washington ties, he said in an interview.

“Our focus is on volunteers,” said Susman, who joined the office a year ago.

As for positioning the ABA for the future, Lamm said she will use the new Ethics 20/20 Commission to explore how U.S. lawyers can best adapt to changes brought on by technological advancement and globalization, such as outsourcing of legal services overseas and regulatory changes in some countries that are allowing non-lawyer owners of law firms.

Holder draws applause calling for indigent defense, DNA testing

Two criminal justice goals set by Attorney General Eric Holder Jr. drew applause from the ABA House of Delegates this afternoon.

The positive responses came when Holder told the lawyers gathered that the U.S. Justice Department would focus on improving indigent defense, including the country’s lagging investment in public defender programs, and on persuading states to guarantee defendants access to DNA evidence in certain situations.

“We must move beyond the narrow parameters that have constrained our nation’s debate about criminal justice policy over the last several decades,” Holder said. “There is no doubt that we must be 'tough on crime.' But we must also commit ourselves to being 'smart on crime.' ”

Holder addressed the ABA annual meeting just six months into his term. He addressed a number of issues he has addresses before, and he declined to take any questions following the speech.

With respect to the lack of resources for public defender programs, Holder said that those programs receive only 3 percent of criminal budget spending in the nation’s biggest counties. “This growing crisis is troubling not just because of the government’s constitutional duty to ensure the right to counsel,” he said. “When defendants fail to receive competent legal representation, their cases are vulnerable to costly and time-consuming mistakes.”

Holder described the Justice Department as committed to using the best available technology, including forensic science, whenever possible. Defendants should have access to DNA evidence in a variety of situations, he said.

In a reference to the U.S. Supreme Court's June 18 decision in District Attorney's Office v. Osborne, which found no constitutional right to post-conviction access to DNA evidence, Holder said, “Federal law already guarantees access to DNA evidence held by the federal government under specific conditions, and I hope that all states will follow the federal government’s lead on this issue regardless of what the Supreme Court has said.”

Filling pro bono needs in a down economy

Find creative ways to help people facing home foreclosure, Illinois Attorney General Lisa Madigan encouraged lawyers at an ABA pro bono awards lunch.

Madigan cited the example set by the general counsel's office of the Federal Reserve of New York, which created a program to help families at risk of losing their homes. The general counsel's office worked in partnership with the Association of the Bar of the City of New York to persuade Citigroup Inc., JP Morgan Chase & Co. and other large lenders to provide waivers to their outside counsel so that those private practitioners could negotiate for individual home borrowers on a pro bono basis.

“This type of program creates incentives for private firms to step up to the pro bono challenge during these deeply troubling times,” Madigan said. All sectors of the legal profession “need to engage in more innovative and creative partnerships to create more access to the justice system.”

Honorees at the ABA Pro Bono Publico Awards lunch today included Morrison & Foerster senior counsel Gordon Erspamer, bankruptcy lawyer Hope Olsson of Rochester, N.Y.'s Olsson & Feder, the Federal Government Pro Bono Program, the Holocaust Survivors Justice Network, and Weil, Gotshal & Manges.

When asked about the profession’s help for out-of-work lawyers, Madigan praised some law firms for paying their prospective associates reduced salaries to do public-service jobs at a time when the firms don’t have enough work to bring on new lawyers.

“They’ll get the type of experience they wouldn’t be getting when they’re a first-year, or even a fifth-year to be honest at some of the major firms,” Madigan said in an interview. “Instead, they’ll be able to take the depositions, argue those discovery motions or argue substantive motions in court.”

Bill Gates considered his father’s profession, but got “sidetracked”

William Gates III, chairman of Microsoft, jetted into Chicago with most of the family Monday to see his father, attorney William Gates II, receive the ABA’s highest honor, the ABA Medal.

“It was a very special occasion to come and hear his remarks,” the younger Gates said. “I know it’s a big day for him.”

The elder Gates, who is co-chair of the Bill & Melinda Gates Foundation, told the House of Delegates, an assembly in which he once served, that he was honored to receive an award that had also been bestowed on former Supreme Court Justices Thurgood Marshall and Sandra Day O’Connor, among others. “I’m in awe of the men and women who won this medal before me,” Gates Sr. told the crowd. “I’m not altogether convinced that I belong in this grand company.”

For his part, the younger Gates said he had considered following his father into the profession, but skipped the idea when he didn’t finish college. “I didn’t finish my undergraduate career so I never got there,” he said in an interview. “I went to a lot of bar meetings when my dad was on the bar association. I thought law was a great profession, but I got sidetracked before I did it. I certainly paid a lot of legal fees though.”

Gates the father is a founding partner of the Seattle firm Preston, Gates & Ellis, which merged with Kirkpatrick & Lockhart Nicholson Graham to become K&L Gates in early 2007. He's been a lawyer for 57 years, he said.

His son said he was always impressed by his father’s “sense of hard work, integrity and justice,” and remembered as a youngster seeing his father get up early in the morning to do pro bono work.

“He devoted his life to the legal profession, and I’ve always been proud of his work,” his son said.

ABA working 'as fast as we can' on recession response, Lamm says

Incoming ABA President Carolyn Lamm is counting on feedback in February from a new commission to push along the association's response to the recession.

“We’re working as fast as we can,” said Lamm, who becomes president tomorrow.

The ABA Commission on the Economic Crisis, created in June and seated with members during the current annual meeting, will deliver the results of its assessment by the ABA midyear meeting in February, she said in an interview.

Lamm, who is a partner with White & Case in the firm’s Washington office, said she hopes the commission will offer a legislative proposal for federal funding of state programs to pay for legal services for cash-strapped homeowners grappling with foreclosures. There are not enough pro bono attorneys to handle the public demand, she said.

The commission will also study the economic impact on the legal profession and what can be done to help lawyers who have lost their jobs, graduating law students who must pay off their law school debts even though they don’t have jobs, and lawyers who have lost their retirement savings, Lamm said.

To that end, the ABA recently created a portal on its Web site with links to job openings and services. Another goal is to list existing law-school debt relief programs on the site within the next month, Lamm said. A proposal for legislation to provide additional relief for debt-carrying lawyers who can’t find jobs or who have had their start dates postponed is also under consideration, she said.

“This again is very much in development,” Lamm said. “It is not yet a program. We’re in a period of assessment.”

She said the ABA is studying whether to reduce dues rates for solo practitioners, judges and public-interest lawyers, whom a survey found to be more sensitive to the membership cost. There are already hardship waivers for lawyers who have lost their jobs and a recessionary price for others who qualify.

Young lawyers caucus on the issues but can't avoid cost question

On the eve of the annual meeting of the ABA House of Delegates, the Young Lawyers Division caucused to discuss resolutions that would be taken up by the policy-making body over the next two days. But the question of whether joining the ABA makes sense for young lawyers also came up.

Over the course of a 90-minute meeting, leaders of the division, which consists mainly of attorneys younger than 36, ran through a list of proposals that had recently been withdrawn from consideration--including a name change for the senior lawyers division and emergency care for animals. They also reviewed six “late” resolutions submitted in the past few days proposing ABA positions on health care reform and financial market regulation, among other things.

In wrapping up the meeting, the young lawyer leading the discussion mentioned that in a prior division meeting the group had discussed the impact that difficult economic conditions had been having on young lawyers. Hundreds of associates have been laid off by law firms in cost-cutting moves over the past year. There weren’t any resolutions on the issue, but the division could review the issue in the future, he said.

That struck a chord for one young Washington attorney in the caucus. He rarely heard from friends about ABA happenings, but in the past six months he’d heard from them a lot. They asked him in e-mails why they should remain ABA members when their firms stopped picking up the tab. What had the ABA done for them lately? He wondered if the ABA should be cutting back on travel spending and looking into the dues issue.

He was told by more senior members of the group that the ABA had sent millions of e-mails to market the association and that ABA leadership was studying the issue and had recently had a major conference call on the topic. He could also take up the issue with the ABA Board of Governors if he felt strongly about it, they said.

“We may be doing something, but we may not be doing enough,” was the closing remark of one young female lawyer.

In today's issue of our sister publication Connecticut Law Tribune, Elizabeth Acee, a Young Lawyers representative to the House of Delegates (and an attorney with LeClairRyan in New Haven) agreed that "there’s work to do” in reaching out to young lawyers. She also noted that some young lawyers who wanted to attend the annual meeting were worried that they couldn't afford hotels in Chicago.