August 12, 2008
By Patricia Manson
Law Bulletin staff writer
NEW YORK — After debating lawyers’ place in the world and quibbling over wording, American Bar Association delegates on Tuesday approved revisions to the bar group’s statement of its mission and goals.
The policymaking House of Delegates adopted a mission statement asserting that the ABA’s purpose is to serve equally its members, the legal profession and the public by defending liberty and delivering justice.
The House also approved a list of goals stating that the ABA strives to serve its members, improve the profession, eliminate bias, enhance diversity and advance the rule of law.
Delegates approved the mission statement and goals after rejecting a proposal by Michael S. Greco of Boston that advancing the rule of law be the first goal listed and serving ABA members be the last.
Greco and supporters of his proposed amendment conceded that the goals were not listed in order of importance.
But many people will view that order as confirmation that the ABA is a trade group rather than the representative of a ”noble profession,” Greco contended.
”What we are talking about this morning, I submit, is the soul of our profession,” Greco said.
Opponents of Greco’s proposed amendment saw things differently.
Patricia Lee Refo of Phoenix, Ariz., contended that members were ”the soul of our organization.”
”Without our members, we cannot be the voice of anything,” Refo said.
Changes to the ABA’s statement of its mission, goals and objectives were among the matters taken up by delegates on Monday and Tuesday during the bar group’s annual meeting.
Resolutions did not become ABA policy unless they were approved by the House.
Delegates voted down a resolution that urged legislatures and government agencies to develop procedures to reduce the abuse and diversion of prescription drugs.
The resolution said information gathered in any Prescription Drug Monitoring Program should be released to law enforcement agencies only when those agencies are ”acting within their official duties and conducting bona fide investigations.”
In urging the House to adopt the resolution, David R. Brink of Minneapolis said a female relative who became hooked on painkillers and began obtaining prescriptions from multiple physicians ultimately received treatment for her addiction, but might have been helped sooner if a monitoring program had been in place.
But Scott Francis Partridge of Houston and Estelle H. Rogers of Washington, D.C., contended that monitoring programs often make physicians who are fearful of unwarranted criminal charges hesitant to provide adequate pain medication to their patients.
”This resolution does really nothing to help patients,” Rogers said. ”It instead has a chilling effect upon compassionate doctors who are trying hard to address the needs of patients in pain.”
Howard T. Wall III of Franklin, Tenn., was among the delegates who argued that the possibility of security breaches that would expose patients’ medical information to unauthorized parties was another reason to reject monitoring programs.
And J. Anthony Vittal of Los Angeles questioned the government’s interest in monitoring the prescription drug use of all patients rather than just those suspected of abusing or diverting such medications.
”The logic underlying this recommendation is the same logic that underlies the NSA program of eavesdropping on all electronic communications,” Vittal said in a reference to the National Security Agency’s warrantless surveillance of telephone calls, e-mail messages and other communications involving at least one party outside the United States.
The House tabled indefinitely a resolution calling for the adoption of the Model Sustainability Policy and Implementation Guidelines for Law Organizations after opponents objected to provisions — including one concerning severance pay and another concerning work-life balance — that they contended had nothing to do with the protection of the environment.
In a razor-thin 192-191 vote, the delegates also postponed consideration of a proposal to amend ABA Model Rule of Professional Conduct 1.10 to allow a law firm in some circumstances to represent a client despite the existence of a conflict of interest stemming from the prior employment of a member of the firm.
But the delegates did adopt a Model Rule for Registration of In-House Counsel.
And the delegates came out against proposed legislation that the ABA Task Force on Gatekeeper Regulation and the Profession contends would impose requirements on lawyers involved in the formation of business entities that would conflict with the lawyers’ ethical obligations to their clients.
Delegates also opposed any requirement that people who do computer or digital forensic work be licensed as private investigators.
In another vote, the delegates approved a resolution calling for the implementation of pilot programs that would allow medical workers to report, without fear of reprisal, hospital ”events” that did not result in any harm but that could threaten patient safety if repeated.
Janice F. Mulligan of San Diego, Calif., said the medical community’s concern about lawsuits traditionally has stood in the way of collecting information about acts of malpractice or negligence.
But the release of information about ”near misses” would not leave medical professionals open to litigation while it would provide valuable data that could be used to improve patient care, Mulligan said.
In other action, the delegates adopted a resolution calling for the removal of barriers that prevent health care workers from using Expedited Partner Therapy.
Protocols drawn up by the U.S. Centers for Disease Control and Prevention allow health care workers under certain circumstances to give patients infected with a sexually transmitted disease medications that the patients then pass on to their sex partners.
Delegates also approved a resolution calling for the adoption of practices to ensure that governments are held accountable for conditions in correctional and detention facilities for adults and juveniles.
Another resolution adopted by the House urged that Federal Rule of Criminal Procedure 32 be amended to require that both the prosecution and the defense in a criminal case be provided with information to be considered by the judge in imposing a sentence.
And delegates in votes on separate resolutions called for a ban on racial and ethnic profiling by law enforcement officers and urged jurisdictions to recognize that ”cross-racial identification” — the identification of a person by an eyewitness of another race — ”may increase the risk of erroneous conviction.”
The House approved one resolution urging the adoption of policies designed to address the disproportionate representation of minority children in the child welfare system and another resolution calling for strengthened protections for victims of gender-based violence inside and outside the United States.
Another resolution approved by delegates called for adequate funding for tribal justice systems.
Delegates adopted one resolution urging the United States to expand its involvement in the International Criminal Court and another supporting the contribution that international trade agreements make to the rule of law.
The House urged judiciaries to work with bar associations to assess their judicial systems.
Delegates also passed a resolution encouraging U.S. senators to appoint bipartisan commissions in their states to evaluate the qualifications of prospective federal trial and appellate judges and to suggest possible nominees to the president.
Resolutions that were withdrawn for further work included one that opposed any laws or policies interfering with a patient’s ability to receive ”medically appropriate care.”
A report accompanying the resolution cited a U.S. Supreme Court ruling last year that upheld a ban on a particular form of late-term abortion in claiming that Congress was intruding in the doctor-patient relationship by barring an otherwise lawful medical procedure.
Also withdrawn for more study was a resolution calling for the direct payment of attorney fees and costs to lawyers representing the prevailing party in certain Social Security Disability Insurance and Supplemental Security Income cases.
The close of the meeting Tuesday marked the end of the two-year term of Laurel G. Bellows of Chicago as House chair.
Just before the House adjourned, Bellows noted that her position had barred her from expressing her views on issues debated by the delegates.
Bellows clearly felt freed from such constraints in the closing minutes of her term.
”Since the beginning of our nation, it has been lawyers who have spoken out when those who govern us, when executive officers and legislators and even courts, sought to impose on our freedom,” Bellows told the House.
But while the ABA has often spoken out against abuse of power, it also has looked the other way on occasion in the face of injustice, Bellows said.
She said the ABA’s failure during World War II to condemn the internment of Japanese-Americans and its failure a decade later to oppose McCarthyism were two times when the bar group did not live up to its own ideals.
The ABA must not let that happen again, Bellows said.
”We must be courageous. We must be eloquent,” she said. ”We cannot be silent.”
