ABA MIDYEAR MEETING VIA ZOOM
HON . DAN TRAYNOR ABA Delegate
Zoom will host the 2021 Midyear Meeting of the American Bar Association ( ABA ). The meeting was slated for Chicago in February . So , those traveling from southern latitudes will likely welcome the virtual approach to the meeting , as they will avoid the chilly winds that come off Lake Michigan .
The Young Lawyer Division and Law Student Division have several proposals to address worsening student loan debt . Resolution 106B encourages amendment of the U . S . Bankruptcy Code to permit students to discharge student loan debt without proving “ undue hardship .” Resolution 106B encourages Congress and the Executive Branch to develop and implement programs to assist lawyers experiencing financial hardship due to student loan obligations .
Social and electoral issues are front and center for the ABA . Resolution 107A encourages federal and state governments to enact legislation to decriminalize abortion or “ other adverse pregnancy outcomes .” Resolution 107B urges elections administrators to award electoral votes to the popular vote winner for that state .
The National Conference of Commissioners on Uniform State Laws encourages approval of Resolution 108A – the Uniform Easement Relocation Act , Resolution 108B – the Uniform Public Expression Protection Act , and Resolution 108C – the Uniform Pretrial Release and Detention Act .
Resolution 111 advocates the enactment of regulations to prohibit the possession and display of firearms by civilians in and around locations “ critical to the functioning of the democratic process .”
Resolution 113 urges the counting of the “ total population , including minors and non-citizens ,” as part of the census count .
The virtual meeting will likely involve only one day of action by the House of Delegates ( HOD ), requiring HOD members one work day to stare at a computer screen .
ABA Model Rule 8.4 ( g ) Ruled Unconstitutional
A federal judge in Philadelphia blocked a Pennsylvania ethics rule that bans lawyers from knowingly manifesting bias or engaging in discrimination in the practice of law . The Pennsylvania rule was adapted from the ABA model ethics rule adopted in 2016 .
U . S . District Judge Chad Kenney ruled for a Philadelphia lawyer who argued the ethics rule would chill his speech as a lawyer for a foundation defending the free speech rights of students .
The Pennsylvania version of the rule says it is professional misconduct for a lawyer to “ knowingly manifest bias or prejudice , or engage in harassment or discrimination ,” in the practice of law , by words or conduct . Judge Kenney described the ban on manifesting bias or prejudice as a “ sword of Damocles ” hanging over Pennsylvania lawyers . The case is Greenberg v . Haggerty , 20-CV-03822 ( E . D . Penn . 2020 ).
North Dakota ’ s version is 8.4 ( f ) of the Professional Rules of Conduct . Our version defines professional misconduct to include “ conduct that is prejudicial to the administration of justice .” Unlike the Pennsylvania rule , North Dakota ’ s version requires the conduct to be performed “ in the course of representing a client .” It also includes an exception where the words or conduct occur in the context of legitimate advocacy .
ABA Ethics Opinion Advises Caution on Online Reviews
ABA Formal Opinion 496 contains a warning for lawyers responding to negative online criticism or reviews . Professional Rule 1.6 ( a ) requires lawyers to maintain the confidentiality of client information . Rule 1.6 ( b )( 5 ) permits disclosure when a lawyer must establish a claim or defense on behalf of the lawyer in a lawsuit between the lawyer and the client , to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved , or to respond to allegations in a proceeding concerning the lawyer ’ s representation of the client .
The ABA opinion warns an online review is not a “ proceeding ,” and responding online is not necessary to establish a defense to a criminal or civil charge . The opinion describes the best practice is to ignore the negative review .
North Dakota ’ s Rule 1.6 ( c )( 4 ) of the Rules of Professional Conduct contains a similar exception to the confidentiality rule .
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