ABA Section of Business Law
ABA Section of Business Law
Business Law Today
September/October 1999
A year in the Section
By Sue Daly
Daly is member services and marketing manager for the Section.
The Section and its members are out in front of the law … shaping it, teaching it and working to improve it. The activities of the Section encompass all areas of business law and the Section is committed to providing you with access to the latest information. We aim to ensure that you serve your clients competently, efficiently, cost-effectively, ethically and professionally. We strive to meet these goals through the Section’s special projects and programs, publications, CLE offerings, Web site and most important, through our committees.
On these pages, we’ll give you the highlights of Section and committee activities from this past year. We encourage you to continue reading … to learn more about the projects that interest you … and to become involved.
Pay-to-Play
The Section has taken critical responsibility in the development of the Pay to Play resolution that was voted on at the ABA Annual Meeting in Atlanta. The resolution amends the Model Rules of Professional Conduct to include a new Model Rule 7.6, "Political Contributions to Obtain Government Legal Engagements or Appointments by Judges." This proposed rule declares that a lawyer shall not make a political contribution to a public official for the purpose of obtaining a government legal engagement. To learn if these resolutions were adopted by the House of Delegates, visit the ABA Web site at www.abanet.org.
International activities
This year the ABA Board of Governors approved the establishment of a Center for the Study of Business Law in Beijing, China. The center is to be operated in conjunction with a program being established by the Temple University School of Law and the China University of Political Science and Law, and will offer a master’s of law curriculum to train Chinese law graduates in U.S. and international legal concepts. The center will organize continuing legal education programs in China on business law and economic regulation subjects for Chinese lawyers, judges and government officials.
The center will provide an understanding of the basic principles of U.S. and international legal concepts that govern business relationships and economic regulation.
Judicial exchange program
The Section participated in a U.S./Africa Judicial Exchange program with the D.C. Superior Court, the U.S. Information Agency and ABA Section of International Law and Practice. In order to plan for a training session for African judges, in Phase I, two Section members traveled to Africa to conduct a needs-assessment tour. In Phase II, a 12-person delegation consisting of judges, private practitioners and government lawyers from four African countries — Tanzania, Uganda, Malawi and Zambia — visited Washington in June to participate in an intensive month-long training session on substantive commercial law and ADR methods.
In Phase III of the exchange program, a Section member participated in the USIA-funded visit of American delegations to each of the participating African nations. Representatives of the D.C. Superior Court and ABA members made follow-up presentations growing out of the Phase II curriculum and focusing on areas requested by the African host nations.
Efforts to diversify
This year the Section emphasized, and was recognized for its efforts to encourage, the participation of women and minorities in Section activities. Both the Commission on Women in the Profession and the Commission on Opportunities for Minorities in the Profession named the Section to their respective honor rolls in this year’s GOAL IX Report Cards. Business Law is the only Section to be named to both lists. See the Diversity Committee Report for more information on Section initiatives.
This year the Section created a fellowship program designed to increase the participation of young lawyers in Section activities. Five members of the Young Lawyers Division were named as the first class of Business Law Fellows: Michelle S. Druce, Brett D. Fallon, Kathleen J. Hopkins, Heidi McNeil Staudenmaier and William Scoggin. The program, which is currently soliciting fellows for its second class, offers young lawyers the chance to become involved in the substantive work of committees, to develop as future leaders for the Section, to experience the benefits of being an active Section member and to increase participation by other young lawyers.
New committees
In response to the ever-changing needs of business lawyers, this year the Section created the following ad hoc committees:
• Business Lawyers as Problem Solvers
• Ethics 2000
• Financial Services Deregulation and Consolidation
• Industry Consolidations and Roll-ups
• Multidisciplinary Practice
• Public Company Information Practices
A new Joint Task Force on Privacy was also established.
Publishing
The Business Lawyer , the Section’s scholarly journal, continues to provide articles of interest to the business lawyer. This year, the journal featured part one of a review of the proposals of the National Bankruptcy Review Commission, a report on the business and ethics implications of alternative billing practices, an annual survey on federal securities regulation and an entire issue dedicated to corporate governance.
Business Law Today, the Section’s news and feature magazine, featured mini-theme issues on the Y2K problem, running a company, alternative dispute resolution and Section initiatives.
In addition to these premier publications, the Section continues to publish outstanding single-title works through its Publications Committee. The committee, chaired by R. Clark Wadlow, anticipates another year as the largest revenue-producing publishing program in the ABA.
The following books were published in the last year: Reorganizing Failing Businesses; The Collected TriBar Legal Opinion Reports, 1979-1998; The ABCs of the UCC: Related and Supplementary Consumer Law; Documenting the Attorney-Client Relationship; The Portable Bankruptcy Code, 1999 Edition; A Commercial Lawyer’s Take on the Electronic Purse; Model Positive Pay Services Agreement and Commentary; Complying with the Foreign Corrupt Practices Act, Second Edition; The New Article 9; and Business Law for Fun ... Just for Fun.
Programming
In keeping with the Section’s mission to educate its members, more than 120 CLE sessions were offered at the Section Spring Meeting and ABA Annual Meeting. We also had more than 20 independent committee meetings.
The Section sponsored or cosponsored four teleconferences, eight satellite seminars, 14 National Institutes, two business law forums, two videoconferences and one ABA-CLE Forum.
The Institutes and Seminars Committee continues to present CLE programs of current interest to the members of the Section, and especially reaches out to those who do not attend ABA Annual or Section meetings. In addition to the traditional live seminar, the committee has sought to use a wide variety of delivery systems, including teleconferences, videoconferences, satellite programs and programs in conjunction with Business Law Today .
In April, the Section’s 24th Spring Meeting attracted 1,441 attendees to San Francisco. Of the registrants, more than 320 were attending our Spring Meeting for the first time. The Section sponsored more than 50 CLE programs and 200 committee and subcommittee meetings.
In late summer, approximately 1,200 Section members attended Section events at the Atlanta Annual Meeting. Members had the opportunity to attend more than 60 Section-sponsored CLE programs and more than 200 committee and subcommittee meetings.
Technology
The Section’s Web site provides a valuable, centralized resource that provides the information you seek any time — day or night. Designed to provide you, the business lawyer, with information relevant to your practice, the Section’s Web site is doing just that. This year, the site has been one of the three most frequently visited Web sites on the ABANetwork and features the latest substantive reports in business law, up to date information on Section news and activities, links to other sites of interest and the latest in committee developments.
Unable to attend the Spring or Annual meeting? Don’t worry, the Web site now offers increased benefits for Section members. All Section members can now get the full text of program materials prepared for Section meetings — free of charge. Remember to check out the Section’s Web site when searching for the latest developments in business law. It’s abanet.org/buslaw/home..
Committee reports
As a Section member, the chance to participate in committees and subcommittees is yours — at no additional cost. Your membership offers you the opportunity to participate in more than 400 committees and subcommittees that focus on every practice area in business law, from the basic to the very sophisticated. Committee participation enables you to receive timely information on changes affecting your practice.
Here is a sampling of some of the many activities of Section committees this year:
Banking Law
• Presented back-to-basics programming, with emphasis on our Banking Law Basics Course, which was offered for the second time in June.
• Task Force on Privileges submitted legislation that was inserted in the Roukema Regulatory Relief Bill to hopefully be enacted by this Congress.
Business Bankruptcy
• Published a review of the more important recommendations of the Bankruptcy Review Commission in volume 53 of The Business Lawyer, which was quoted by the Supreme Court.
• Participated actively in legislation matters, including sending a number of letters to members of Congress expressing the ABA’s position on issues important to business bankruptcy lawyers including direct appeals, partnership provisions, deletion of the requirement that debtor’s counsel be "disinterested," sharing fees with "bona fide" lawyer referral services and opposing new priorities and special-interest amendments to the Bankruptcy Code.
Business and Corporate Litigation
• Assisted the Section in developing its position on several litigation-reform proposals through its Task Force on Litigation Reform and Rules Revision.
• Participated in "ABA Day" meetings with congressional representatives and staff on litigation-reform issues.
• Published a committee newsletter featuring articles by members on a wide range of business-litigation topics.
Commercial Financial Services
Implemented (with the UCC Committee) a state-of-the-art home page that either provides or will provide the following services to members:
• a 50-state survey of commercial law in major areas of interest to our members with nationwide practices
• full text of material prepared and published for committee meetings and programs
• a description of subcommittees
• a database of the 1,400+ members of the committee
• the text of the current and prior issues of our periodical, the Commercial Law Newsletter
• an online membership application
• Established a membership list serve that serves as the exclusive method of communication between the leadership and the membership
• Conducted a committee-wide "quality control" survey, to determine what the committee is doing well and where it could improve the delivery of services to the membership
• Created the following new subcommittees: Intellectual Property … Loan Workouts … International Financial Transactions
• Participated in the revision of Article 9 of the Uniform Commercial Code, and in the drafting of Article 2B.
Conflicts of Interest
Led a panel discussion of ABA Ethics 2000 Commission’s important draft proposals on conflicts of interest.
Consumer Bankruptcy Committee
• Continues to study the pending Bankruptcy Reform Act as it moves from the National Bankruptcy Review Commission’s report through several bills in Congress.
• Looks for unintended consequences of the legislation to try to prevent problems that may result from the amendment of the Bankruptcy Code and Rules.
• Reviewed recent developments in consumer bankruptcy cases and issues at our Spring meeting.
• Launched a project to develop a handbook of local practices in consumer cases, particularly Chapter 13 procedures.
Committee on Corporate Laws
Landmark revisions were proposed and made final in four important areas:
• Standards of conduct and standards of liability for directors. See 53 The Business Lawyer 157 (1997); 53 The Business Lawyer 813 (1998)
• Standards of conduct for officers. See 53 The Business Lawyer 815 (1998); 54 The Business Lawyer 1229 (1999)
• Appraisal rights. See 54 The Business Lawyer 209 (1998) (Final adoption in April, 1999)
• Fundamental changes. See 54 The Business Lawyer 685 (1999) (Final adoption in April, 1999)
Counsel Responsibility
Presented a discussion at the November ’98 meeting in Washington on the current-and-choice counsel responsibility issues that included the General Counsels of both the SEC and the C.F.T.C.
Cyberspace Law
• Continues to direct, with the assistance of Chicago Kent Law School, the Section’s Transnational Jurisdiction in Cyberspace Project that will culminate in the presentation of its findings in nine areas of the law at the London 2000 Annual Meeting.
• Produced an annotated model home banking agreement (Electronic Financial Services Subcommittee)
• Developed a model telecommunications services/infrastructure agreement (Information Infrastructure Subcommittee).
• Participated in efforts by the National Conference of Commissioners on Uniform State Laws to finish the Uniform Electronic Transactions Act (Electronic Financial Services Subcommittee).
• Developed a consumer brochure on debit cards and a consumer protection Web site. (Electronic Commerce Subcommittee and Electronic Financial Services Subcommittee).
• Provided commentary and advised Congress on the development of Y2K legislation
Dispute Resolution
• Developed corporate dispute resolution programs in conjunction with the Corporate General Counsel and Corporate Counsel Committees.
• Published various dispute-resolution articles by committee members in Business Law Today .
Developments in Investment Services
Presented a program on mutual fund marketplaces and one that concentrated on the exclusions from the definitions of "investment company" and the types of issuers and entities that may rely on them to avoid registration under the 1940 Act.
Diversity
• Developed the Section’s Diversity Plan that was adopted by the Section Council at the 1999 Midwinter Meeting. The purposes of the plan are to encourage the active recruitment of minority, women and younger lawyers and participation by these lawyers in the Section’s leadership and activities by establishing achievable expectations, providing practical guidance and recommending procedures for accountability. A copy of the plan can be found on the committee’s Web page at http://www.abanet.org/buslaw/diversity/99-divplan..
• Established a pilot e-mail mentoring program for law students that matches law students with professional members of the Section to allow the exchange of knowledge and experiences.
• Awarded scholarships to four minority law students participating in the CLEO (Council on Legal Education Opportunity) Program. Recipients received all-expense paid trips to the Section’s Spring Meeting.
• Presented to Mary Ann Hynes the annual "Glass Cutter Award" that is given to a woman member of the Section who has achieved professional excellence in her field, demonstrated dedication to the work of the Section, worked to advance opportunities for other women in the profession and the Section, and has been actively involved in the mentoring of, and served as a role model for, other women members of the Section.
Developments in Business Financing
• Together with the Committee on Trust Indentures and Indenture Trustees, drafted a model simplified indenture, to be published in an upcoming issue of The Business Lawyer.
• Participated in the drafting of the Section’s comment letter on the SEC’s "Aircraft Carrier" release, on the topic of how the proposal relates to structured financings.
Federal Regulation of Securities
A major portion of the committee’s attention, and indeed that of a large number of securities lawyers, during the past year has been the SEC’s "Aircraft Carrier" proposals. If adopted, they would rewrite the rules of securities offerings.
• Commented on the merger and acquisition proposals
• Prepared to file a comment letter on the important changes to the registration process.
• Sponsored programs and wrote articles on the increasing role of electronic communication in the securities industry. This subject is the focus of the July issue of The Securities Reporter, the committee’s newsletter.
• Sponsored two of our traditional roundtable meetings with senior staff of the SEC that covered issues of current interest to the securities bar and featured an active exchange of views between our membership and the SEC staff.
Law and Accounting
Addressed the legal ramifications of many significant accounting and auditing developments during 1999, including the recommendations of a blue ribbon committee as to the qualifications and functions of corporate audit committees, SEC standards for professional conduct, SEC initiatives to curb "creative" accounting, legal opinions addressing certain bankruptcy issues and the FASB’s proposed consolidation standards.
Lawyer Business Ethics
• Published a report on alternative billing practices in the November 1998 edition of The Business Lawyer.
• Drafted a report on the "Lawyer as Director."
• Organized a new Task Force on Lawyers Investing In or With Their Clients
Negotiated Acquisitions
• Continued work on the Model Asset Purchase Agreement, which is to be published later this year.
• Created a Task Force on International Transactions that has developed a survey comparing the laws of many jurisdictions in connection with asset acquisitions to be published with the Model Asset Purchase Agreement.
• Co-sponsored the Institute on International Mergers and Acquisitions, in Salzburg, Austria, in June 1999
• Initiated a task force to update the Model Stock Purchase Agreement, with Commentary, and to draft a "seller’s response" to the Model Stock Purchase Agreement
Regulation of Futures and Derivative Instruments
Planning to present to committee members a semi-annual report highlighting legal developments of significance in the 16 areas of substantive law covered within the committee.
Uniform Commercial Code
• Participated in the drafting committees working to create revised official texts for Article 1, Article 2 and Article 2A.
• Advised the National Conference of Commissioners on Uniform State Laws on the Uniform Computer Information Transactions Act, Uniform Consumer Leasing Act, and the Uniform Electronic Transactions Act.
• Worked with the National Conference of Commissioners on Uniform State Laws and the American Law Institute on uniform enactment of the official texts for Articles 3, 4, 4A, 5, 6, 8 and 9.
• Worked with international law organizations to promote uniform commercial laws internationally.
• Published the Commercial Law Newsletter (in conjunction with the Commercial Financial Services Committee) and distributed it to all committee members.
• Published two versions of a Model Control Agreement for Revised UCC Article 8.
• Prepared the annual UCC Survey in The Business Lawyer.
• Developed a joint Web page with the Commercial Financial Services Committee to better publicize committee activities.
• Committee members wrote another addition to the ABCs of the UCC series, ABCs of the UCC: Related and Supplementary Consumer Law , published by the ABA.
• Continued development of the following projects for publication: Model Short Form Funds Transfer Agreement; Model Positive Pay Service Agreement; Report on Certificate of Title Laws of Each State; revised edition of ABCs of the UCC: Article 9; ABCs of the UCC on the Uniform Computer Information Transactions Act.
These are some of the highlights from the past year. The Section has more than 400 committee and subcommittees designed to keep you abreast of the trends and developments in your specialty area. Committee are continually sponsoring information-packed CLE programs, drafting model acts, reviewing proposed legislation and writing reports, articles and books.
Getting involved in committee activities will enhance your practice and expand your network of professional colleagues and contacts. If you would like to be appointed to a specific committee, please call the Section office at 312/988-5588 or send an e-mail to businesslaw@abanet.org.
We would like to hear your thoughts on what we can do to better serve you — and the profession. Please call the Business Law Section at 312/988-6244 or e-mail suedaly@staff.abanet.org. Thank you for your continued support.
