ABA Association Delegate Report

THE AMERICAN BAR Association House of Delegates, at its Midyear Meeting in Seattle, Wash., on Feb. 10 and 11, 2003, considered several task force reports on controversial issues relating to national security, capital punishment and class-action and tort litigation. New Hampshire Bar members represented in the House of Delegates, the ABA’s policy-making body, include State Delegate Stephen L. Tober, former ABA Secretary Jack Middleton and Association Delegate L. Jonathan Ross.

Enemy Combatants

Appointed by former American Bar Association President Robert Hirshon of Portland, Maine, the ABA Task Force on Treatment of Enemy Combatants presented a report urging that U.S. citizens and other residents lawfully present in the United States who are detained within the U.S. based on their designation as "enemy combatants" be afforded the opportunity for meaningful judicial review of their status and that they not be denied access to counsel in connection with the opportunity for such review.

The group, in Report 109, further urged Congress to establish clear standards and procedures governing the designation and treatment of "enemy combatants." The U.S. Department of Justice forcefully opposed the resolution. John MacKay, United States attorney for the state of Washington and former president of the Legal Services Corporation, presented the government’s arguments to the House. Among other things, he contended that access to counsel would clearly interrupt the government’s interrogation process and would be a means of communicating information by the detained "enemy combatant" to others who may be involved in terrorist activities. He further argued that under the rules of war, an "enemy combatant" should have no such rights. Subsequent proponents of the report made it clear that the resolution called only for judicial review of the status designation as "enemy combatant" and provided access to counsel, not a requirement that counsel be appointed. The Department of Justice was supported in its arguments against the resolution by a representative of the Washington Legal Foundation. After substantial debate, Resolution 109 was adopted by the House of Delegates with over 95 percent of those voting in favor.

Asbestos Litigation

Another controversial matter was reviewed in Report 302 from the Commission on Asbestos Litigation led by President-Elect Dennis Archer of Detroit. The Commission urged the ABA to adopt a policy and standard for non-malignant asbestos-related disease claims and to support federal legislation consistent with those standards that would:

1. allow those alleging non-malignant asbestos-related disease claims to file a cause of action in state or federal courts only if they meet the medical criteria in the ABA standard;
2. toll all applicable statute of limitations until such time as the medical criteria in the ABA standards are met.

Proponents argued that legislation relating to asbestos claims will be considered by Congress and that, if the ABA has no policy in the area, its voice cannot be heard in the consideration of such legislation. They further argued that non-malignant asbestos-related disease claims have been responsible for bankruptcy of over 65 companies, siphon money away from truly sick people to those who might have asbestos-related scarring but no direct symptoms, and often result in settlements of insufficient sums, barring further claims when the person develops a more serious disease symptom later in life. Proponents argued that traveling clinics are hosted by entrepreneurial plaintiffs’ lawyers, represent a billion-dollar-plus business, and use inappropriate methods of raising this kind of litigation.

The American Trial Lawyers Association strongly opposed this report and the president of ATLA appeared by special permission to address the House of Delegates. She argued that the ABA position interfered with individual rights and the possibility for American citizens to be compensated for injuries. She argued that adopting a standard with detailed complex medical criteria was outside the expertise of the ABA and that this was better left to other forums for resolution. After substantial debate, including criticism that President-Elect Archer’s firm had formerly represented WR Grace & Company, the report was adopted by a large majority.

Class-Action Task Force

A similar but less controversial matter was Report 304 from the Task Force on Class-Action Legislation. The report pointed out that there will probably be federal legislation introduced controlling class-action practice and expanding federal court jurisdiction. The Task Force recommended that the ABA adopt a policy that would preserve a balance between legitimate state court interests and federal court jurisdictional benefits in class actions. The task force further argued that such a position would allow the ABA to participate in the debate over these issues. The resolution was supported by ABA president A.P. Carlton and President-Elect Dennis Archer and was passed effortlessly.

Counsel for Indigent Defendants in Capital Cases

The Standing Committee On Legal Aid and Indigent Defendants and the Special Committee On Death Penalty Representation – with co-sponsorship by the Criminal Justice Section, Section of Litigation, Section of Individual Rights and Responsibilities, Senior Lawyers Division, and the Association of the Bar of the City of New York – presented Report 107, which proposed revisions to ABA guidelines for the appointment and performance of defense counsel in death penalty cases.

By a decisive vote, the proposal, which updates and revises a similar ABA policy adopted in 1989, was approved. Under the revised guidelines, a defense team is required in capital cases including the use of a mitigation specialist. Counsel selected for capital cases must demonstrate experience sufficient to handle such cases, not merely years of practice.

New Leadership

During the House proceedings, President-Elect Nominee Robert Gray of Virginia was introduced. He will become president-elect of the American Bar Association after the annual meeting in August 2003. Robert Gray will be the second African-American president of the ABA, following Dennis Archer of Detroit, who is next year’s president. In brief remarks, Gray gave many examples of the freedoms and liberties enjoyed in this country that are protected and promoted by lawyers. "When people worship in a place of their own choosing, lawyers win. When people are represented by competent counsel in court, lawyers win," Gray said

The ABA Board of Governors recommended an increase of about 15 percent in membership dues, which was approved by the House of Delegates.

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