DISCIPLINARY SANCTIONS FOR THE POLITICALLY INCORRECT
DISCIPLINARY SANCTIONS FOR THE POLITICALLY INCORRECT
DAN TRAYNOR ABA Delegate
The American Law Institute( ALI) and American Bar Association( ABA) recently held their annual meetings. Many lawyers from around the country attend both meetings. ABA President Paulette Brown was a featured speaker at the ALI meeting and presided over much of the very large ABA meeting. In North Dakota, we were honored to host President Brown at our own SBAND Annual Meeting in Grand Forks between the two national events.
Interesting Topics and Speakers at the American Law Institute
Election law, liability insurance, and changes to the Model Penal Code relating to sexual assault provided a lively and substantive discussion at the 93rd Annual Meeting of the American Law Institute( ALI) in Washington, D. C., in May.
The ALI’ s election law discussion focused on providing guidance to states concerning early, in-person voting, and open absentee voting. A fascinating, and potentially-timely, discussion occurred regarding procedures for the resolution of a disputed presidential election.
Chapters one, two, and three of the Restatement of the Law, Liability Insurance, were presented and approved. Most changes to chapters one and two were clarifications.
28 THE GAVEL
Section 13 now contains a general exception to the complaint-allegation rule that ordinarily governs the duty to defend. The rule in § 19 regarding loss of coverage defenses as a consequence of the breach of the duty to defend now applies only in narrower circumstances, primarily when the insurer lacks a reasonable basis for a refusal to defend. Chapter three addresses general principles relating to the risks insured that are common to most forms of liability insurance.
The MPC Sexual Assault discussion was particularly thought-provoking as prosecutors, defense lawyers, and judges discussed a proposed definition of“ consent” and the elements of the offense of Sexual Penetration without Consent. After an extensive discussion, the membership approved an amended version of“ consent” proposed by motion, adding a definition that included recklessness as to whether the act was with or without consent.
The ALI was honored to welcome U. S. Supreme Court Associate Justice Sonia Sotomayor for a discussion about the collegiality and passion involved in conserving the integrity of the rule of law. It was a highlight listening to Retired Associate Justice John Paul Stevens and one of his former law clerks reminisce about their time together on the Court.
I was joined at the ALI meeting by former SBAND President Joe Wetch from Fargo. I know we both found much of the discussion interesting and useful, as it could be applied to our work as practicing lawyers.
ABA Delegates Consider Changes to Professional Conduct Rules
In August, the ABA’ s Annual Meeting in San Francisco was a busy time with thousands of lawyers from around the country at the gathering. The House of Delegates continued its focus on issues of discrimination and related topics.
The Standing Committee on Ethics and Professional Conduct advanced Resolution 109 that would add an entirely new subsection( g) to the ABA Model Rules of Professional Conduct:
Rule 8.4: Misconduct
It is professional misconduct for a lawyer to:
( g) harass or discriminate on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This Rule does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16.
The comment change would expand the more limited“ representing a client” to the potentially much broader category of“ conduct relating to the practice of law.”