The State Bar Association of North Dakota Summer 2013 Gavel Magazine

ABA REPORT al representative of the legal profession. As the August meeting draws near, the ABA is embarking on its latest effort to secure the future of the organization by launching ABAction, a program designed to enhance, market and bolster the work and image of the ABA to its present membership and its future membership. With the incredible issues facing our profession from a national perspective it could not come at a better time. The legal profession and the rule of law are front page in every publication in the country today. The nation looks to the voice of the legal profession-the American Bar Association, for guidance. Headlining the August Meeting will be what promises to be a vigorous debate on competing and contrasting Resolutions which both propose to change the judicial finance landscape of this country. Resolution 108 has been put forth by the Standing Committee on Professional Discipline and the Standing Committee on Ethics. It seeks to amend the ABA Model Rules of Judicial Conduct. It is a detailed change in judicial campaign financing under the Model Rules. The proposal comes directly from a charge by the House of Delegates to propose necessary amendments to address ethical issues relating to disqualification of judges in the election and retention election context. It makes changes in the Terminology Section of the Rule, changes the black letter of Rule 2.11(A)(4) regarding categories of financial contributions and proposes three new Comments to Model Rule 2.11(A)(4) relating to “knowledge” of the judge of contributions and proposes to clarify relevant factors that may be considered in determining whether disqualification is appropriate. Rule 2.11 of the Model Code of Judicial Conduct, entitled “Disqualification” addresses the various bases for judicial recusal or disqualification. In 1999, the ABA added subsection (A)(4) to this rule, adding financial contributions to judicial election campaigns as a potential ground for recusal. Following a report by the ABA Standing Committee on Judicial Independence, the House of Delegates approve d a resolution in 2011, resolving that states should establish procedures for judicial disqualification and guidelines relating to campaign contributions. It also charged several standing committees of the ABA to consider what amendments, if any, should be made to the ABA Model Rules of Judicial Conduct. Those Committees were the ABA Standing Committee on Ethics and the Standing Committee on Professional Discipline. The work of those Committees lead to the introduction of Resolution 108. In contrast Resolution 10B is sponsored by the Indiana State Bar Association, Judicial Division, National Conference of State Trial Judges, National Conference of Federal Trial Judges and the Appellate Judges Conference among others. The resolution urges the states and territories to review judicial disqualification procedures on a regular basis and to assure that such rules provide objective and unambiguous bright line standards to disqualify or recuse judges from participation in particular matters, when appropriate. It does not specifically call for any amendments to the Code of Judicial Conduct. It urges review by the individual states of their disqualification procedures. The supporters of Resolution 10B in taking a more general approach to modifying the Model Code oppose Resolution 108 arguing that it places far too much of a burden on judicial officers and does not accommodate the diversity of methods used by the states and territories in electing judicial officers. Resolution 10B would change the Judicial Code’s standard for disqualification of judges (“when there is a substantial risk of actual bias”) to a new disqualification standard (“when there is a substantial risk of actual bias or when a judge’s impartiality might reasonably be questioned”). The supporters of Resolution ABA Delegate Jim Hill 2013 Annual Meeting in San Francisco continues ABA House Tradition For Lively Debate The ABA House of Delegates meets once again in San Francisco. Set to convene in August 2013 the meeting promises to carry on the incredible tradition of the governing body of the ABA to engage in vigorous debate on very poignant and significant issues facing the legal profession and make decisions on the future of the profession on various plateaus. The Association has many voices in the debate process but one distilling voice at the endits House of Delegates described as the policy making body of the ABA. This meeting promises significant debate on critical issues discussed below. On a personal level it also marks the last meeting that the undersigned will sit as a member of the Board of Governors of the ABA. It has been an extraordinary threeyear tenure. While continuing as a Member of the House after August, this time on the 38 member Board has been a rare glance at the inter-workings of the greatest volunteer dues paying professional organization in the United States. Following the footsteps of Judge Kermit E. Bye and the late great Minot Attorney, Dick McGee as the last two North Dakota lawyers who have done the same, the experience has been extraordinary. As my personal time on the Board comes to an end, the American Bar Association has never been more vibrant, exciting and necessary as a world leader in defending liberty and delivering justice as the nation- 30 The Gavel Summer 2013

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