ABA Section of Business Law
ABA Section of Business Law
Business Law Today
September/October 2000
A year in the Section
1999-2000
By Joanne Travis
T his year of transition into the new millennium has been exciting and chock-full for the Section of Business Law. In its 62nd year, with membership exceeding 55,000, the Section continues to be out front on business law and a leading force in advancing the education and professionalism of business lawyers nationally and internationally.
Furthermore, the Section continues to evolve and expand its horizons as it fully embraces its commitment to promote a forum that actively engages and reflects all of its constituencies. Consequently, this year we celebrate several "firsts" in the Section. These noteworthy events include:
• Installation of the first African-American chair of the Section, Michael E. Flowers, partner, Corporate Department, Bricker & Eckler LLP, Columbus, Ohio.
• Rollout of the first class of Business Law Ambassadors, a program initiated under Flowers’ leadership, which provides opportunities for lawyers of color to participate actively in the substantive work of the Section.
• Rollout of the first Business Law Section Career Forum, another Flowers’ initiative, that provides an opportunity for members to address their employment needs either as an employer or candidate while also participating in career-related educational programming.
Special projects and events
Pay-to-play victory. Thanks to the efforts of Section delegates to the ABA House of Delegates, the Section claimed victory in the House at the Midyear Meeting in Dallas by securing the passage of Recommendation 110. It calls for the adoption of a new Rule 7.6 that will eliminate what is commonly referred to as "pay-to-play" in the area of contributions by lawyers to get government legal engagements or appointments by judges.
ABA Day at the United Nations. April 10-11, 2000, the Section, represented by then chair and chair-elect, Mike Flowers and Amy Boss, was part of an ABA delegation to the United Nations led by then President-Elect Martha Barnett. Section leaders had the opportunity to meet with the under secretary-general and legal counsel and other high-ranking officials at the UN and with senior members of the U.S. Mission.
ABA Day in Washington. May 16-17, 2000, Mike Flowers and Amy Boss joined more than 150 other ABA and state and local bar leaders for the fourth annual "ABA Day in Washington." They met with selected elected officials and with senior staff members from such important committees as the Senate Committee on the Judiciary, the Senate Banking Committee and the House Committee on Commerce and discussed issues of importance to our Section such as digital signatures, bankruptcy reform and funding for the Legal Services Corporation.
International activities
Asia Law Initiatives Council (ALIC). The purpose of the ALIC is to promote, initiate, develop, coordinate and supervise activities of the ABA and its entities in Asian countries. The Section chair and chair-elect, both representatives to the ALIC, attended a meeting of that group on May 30 and 31 that focused on technical legal-assistance projects in China and Indonesia.
Africa Law Initiatives Council (AFLIC). The purpose of the AFLIC is to coordinate ABA activities in Africa. Mike Flowers, as immediate past chair of the Section, will represent the Section on this council.
Latin America Law Initiatives Council. The purpose of this council is to coordinate ABA activities in Latin American countries. Hal Barron, the vice-chair of the Section, will represent the Section.
Diversity initiatives
Diversity Plan. The Section’s Diversity Plan, which was updated at the beginning of this year (go to http://www.abanet.org/buslaw/diversity/00-divplan. to view the 2000 Plan), contains specific steps that the Section has committed to take in order to ensure full and equal participation for lawyers of color, women lawyers, younger lawyers and lawyers with disabilities.
Colloquium on Diversity in the Legal Profession. On Oct. 14-16, 1999, the Section was represented at this colloquium that was convened by then ABA President Bill Paul. More than 80 distinguished educators, corporate counsel and leaders of law firms and the organized bar gathered to formulate an action plan aimed at furthering an ABA presidential initiative: To improve the diversity of the legal profession by fostering greater representation of racial and ethnic minorities within the ranks of lawyers.
Diversity in the Legal Workplace Conference. On Nov. 15-16, 1999, the Section was represented at this conference, which was convened by Charles Morgan, the general counsel of BellSouth Corp. and chair of our Committee of Corporate General Counsel. The purpose was to bring together corporate general counsels to exchange views and experiences concerning their goals of achieving greater diversity among the members of their in-house legal staffs and also among their outside counsel. The conference was attended by general counsels of many of more than 200 major companies.
Business Law Ambassadors Program. This year, the Section created the Business Law Ambassadors Program. The three major components are to: 1) provide opportunities for lawyers of color to participate actively in the substantive work of the Section; 2) commit financial resources for that purpose; and 3) facilitate the progress of lawyers of color into future leadership positions within the Section. Five lawyers will be selected each year for the program. The first class: Rhonda D. Harjo, Keith M. Harper, Ellen Kuo, Willie E. Shepherd and Michael W. Sillyman.
Business Law Fellowship Program. The Section announced its second class of fellows, which was created to increase the participation of young lawyers in the substantive work of the Section. The five members of the Young Lawyers Division are Stacie Brown, J. Tate London, Tim Lupinacci, Melissa Savenko and Cheryl D.S. Walker.
Council on Legal Education Opportunity (CLEO) Scholarship. Two years ago, the Section established the CLEO scholarship program to assist CLEO Fellows in completing law school and to encourage participation of women and minority law students in Section activities. The student applicants must be participants of the CLEO pre-law summer institute program and members of the ABA Law Student Division as well as interested in pursuing a career in business law. This year’s recipients are M. Jeamilette Castro, Rocio M. Diaz, Khadizeth Toure, Andre Wright and Armando Zambrano.
The National Minority Conference. On May 11-12, 2000, more than 250 lawyers were on hand for the National Conference for the Minority Lawyer, in San Francisco. The objective of the conference was to provide practical training sessions and substantive CLE programs designed specifically for minority business lawyers and litigators.
ABA Legal Opportunity Scholarship Fund Selection Committee. Our Section, along with many of its individual members, has contributed in excess of $115,000 to the ABA Scholarship Fund that was established last August by ABA President Paul, to help increase the number of racial and ethnic minorities who enter the legal profession. The first 20 scholarship recipients were recently selected.
New committees and changes
The needs of the business lawyer are ever changing. To address these needs, the Section has created the following committees and ad hoc committees: Committee on Strategic Communication; Ad Hoc Committee on Consumer Arbitration; and Ad Hoc Committee on Career Forums.
• The Committee on Environmental Controls was renamed the Committee on Natural Resources, Energy and Environmental Law.
• The Ad Hoc Committee on Multidisciplinary Practice was given full committee status.
Programming
In keeping with the Section’s commitment to educate its members, more than 120 CLE sessions were offered at the Section’s Spring and Annual meetings. The Institutes and Seminars Committee continues to present CLE programs of current interest to Section members and reaches out to those who typically do not attend ABA Annual or Section meetings.
In addition to the traditional live seminar, the committee has used or is planning the use of a variety of delivery systems. The Section conducted 52 independent committee meetings and sponsored or cosponsored 14 National Institutes, 13 Satellite Seminars, VideoConferences and VideoLaw seminars and six ABA-CLE Teleconferences.
In June, the Section sponsored the BLT Live Teleconference, "White collar crime: How to keep business lawyers from becoming defendants in criminal prosecutions." Additional BLT Live teleconferences will be scheduled this coming year.
Spring Meeting. March 23-26, 2000, the Section’s Spring Meeting attracted 1,356 lawyers to Columbus, Ohio. Of the registrants, more than 300 were attending for the first time. The Section sponsored more than 50 CLE programs and more than 200 committee and subcommittee meetings.
New York Annual Meeting. July 7-11, 2000, approximately 1,400 Section members attended Section events at the first half of the Annual Meeting in New York City. There were more than 200 committee and subcommittee meetings and more than 50 CLE programs available.
London Annual Meeting. July 16-20, 2000, more than 600 Section members attended the second half of the Annual Meeting, which convened in London. The ABA and Section along with our British counterparts explored the emerging issues facing the profession in an increasingly global community. The Section sponsored eight specialized programs to tackle some of the global concerns of business lawyers.
Technology
The Section’s Web site provides a centralized resource that provides the information you seek — day or night. The site provides the latest Section news and activities and links to other sites of interest. If you’re unable to attend the Section Spring or Annual Meeting, don’t worry. Section members can get the full text of program materials and reports prepared for Section meetings — free of charge.
One of the newest member benefits started this year was the Online Section Directory, a Web-based directory of Section/committee members. Members may now access a directory of their fellow Section/committee members via their Section’s home page at www.abanet.org/buslaw.
Committee reports
As a Section member, you have the opportunity to participate in committees and subcommittees at no additional cost. There are more than 400 committees and subcommittees to choose from that focus on every practice area in business law. Committee participation grants you access to timely information on changes affecting your practice. Following is a sampling of Section committee activities this year.
Business Law Education
The Business Law Education Committee Focuses on Educating Business Lawyers to Succeed in a 21st-Century Practice. For years, law firms have complained that law schools educate their graduates to "think like litigators" rather than to practice successfully as business lawyers.
In a program at the Section Spring Meeting, the committee focused on the innovative ways in which law schools and firms are bridging this gap. Among the topics discussed were: the increasing number of transaction-based law-school courses, including some that use the business-school case study approach; the effectiveness of transactional clinics; the importance of law schools’ hiring faculty who understand the "theory" behind transactions, not just the relevant statutory or case law; and the division of labor between schools and firms in training business lawyers.
Commercial Financial Services
• Continued to develop a 50-state survey of commercial law covering major areas of interest to the committee’s membership.
• Developed a Master Commercial Finance Calendar, available to members that lists all meetings, programs, seminars and other events of interest to commercial finance practitioners. It is linked to the home pages of organizations that sponsor the programs.
• Enhanced its home page, so that it now provides a listing of committee leadership, description of all subcommittees as well as the Finance Calendar.
• Actively promoted a master listing of its membership, listing phone numbers, e-mail addresses and areas of practice and representative clients.
Cyberspace Law
• Launched Safeshopping.org on Oct. 25, 1999, a first-of-its-kind Web site to educate shoppers on how to shop and pay for goods and services online. The site has received national acclaim for its public-service focus.
• In July 2000, the Transnational Cyberspace Jurisdiction Project released its two-year study, "Achieving legal and business order in cyberspace: Jurisdictional issues created by the Internet." More than 120 lawyers in 20 countries worked on this report.
• The Corporate Aspects of Information Technology Subcommittee created a nespionage.com Web site to educate businesses concerning security threats to online business and sponsored a program in New York on the subject.
• The Internet Law Subcommittee is in the final stage of publishing of a book, The Law of Interactive Media. This publication, planned for Aug. 31, 2000, is co-authored by many of the top experts in the world on Internet law.
Developments in Investment Services
During 1999-2000, the committee sponsored several highly successful programs. In particular, at the Spring Meeting in Columbus, the committee joined with the Banking Law Committee and Consumer Financial Services Committee to sponsor a four-hour program on e-commerce and financial services. The program focused on e-banking, including electronic payments systems, the pending electronic signature bill and financial privacy developments after the Gramm-Leach-Bliley Act.
Diversity
The committee on Diversity had a busy year focusing on increasing membership and retention of minority, women, younger lawyers and lawyers with disabilities. The top four activities this year were:
• The launching of a successful Ambassadors Program
• The planning of a successful "National Conference for the Minority Lawyer" in San Francisco on May 11-12, 2000.
• The Women’s Business Law Network (WBLN) sponsored a "Women’s Caucus Breakfast" at the Spring meeting in Columbus, Ohio, where the WBLN conducted a moderated "open microphone" discussion among committee chairs, diversity committee liaisons and past and present Section chairs.
• Presented to Renie Grohl, of Washington, 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, and has been actively involved in the mentoring of, and served as a role model for, other women members of the Section.
Federal Regulation of Securities
The committee devoted a great deal of attention this past year to commenting on a number of significant SEC rule proposals, discussing important interpretive issues with the SEC staff and sponsoring programs on recent securities-law developments.
• Commented on the SEC’s Regulation FD-Selective Disclosure proposal that would require companies to make public material-nonpublic information disclosed selectively.
• Commented on the SEC’s proposed insider-trading rules to equate "possession" of inside information with "use" and to define relationships of confidence and trust.
• Commented on the SEC’s proposals regarding investment adviser "pay-to-play" activities as well as its proposals regarding independent fund directors’ selection of outside counsel.
• Discussed with the SEC staff various issues involving Rule 701 and registration of employee stock-purchase plans and sought interpretive guidance.
Law and Accounting
In addition to CLE accredited committee forums on government accounting standards and the accountant client privilege at two of its four meetings, the committee sponsored or co-sponsored six programs on SEC financial reporting and auditing issues, multi-disciplinary practice, off-balance sheet financing and international accounting standards. They also submitted six letters of comment to the SEC, AICPA and ISB on financial reporting, audit committee and auditor independence issues.
Negotiated Acquisitions
The committee has completed work on the Model Asset Purchase Agreement with Commentary , which promises to be an outstanding publication that should be available for purchase by the end of this year. The committee is revising the Model Stock Purchase Agreement , which has been in print for five years and will prepare a seller’s response document. Other committee projects in process include an agreement for the acquisition of a public company, a joint venture agreement and publications summarizing the laws of various countries as to merger-and-acquisition transactions.
Our membership consists of many of the leading M&A lawyers in the world. The committee also has become an international committee, with members from more than 15 countries.
Pro Bono
The Pro Bono Committee published The ABC Manual, Starting and Operating a Business Law Pro Bono Project in April, 2000. The ABC Manual draws on the experience of the Section in helping begin two pro bono projects, in Washington, D.C. and Georgia, and on the experience of other such programs that use business lawyers to assist nonprofit corporations, micro-enterprises and community development efforts.
In addition, the committee awarded the Section’s 2000 National Public Service Awards to William Kelly Jr. of Washington and to the GE Corporate Law Group.
Regulation of Futures and Derivative Instruments
The committee once again held its highly successful three-day Winter Meeting in Key West, Fla. Subjects within the committee’s areas of responsibility were covered in detail in an informal setting, highlighted by CFTC Chairman Rainer’s keynote speech, in which he reiterated his program of deregulation for the commission.
In addition, the committee put on programs of interest to its members and nonmembers in conjunction with the Section’s Spring Meeting in Columbus, Ohio, and in cooperation with the New York Bar Association in New York City.
We also mail to our members every six months a summary report highlighting legal developments of significance in the 16 areas of substantive law covered by our subcommittees.
Trust Indentures and Indenture Trustees
The committee’s most significant achievement was the publication of "Revised Model Simplified Indenture," 55 Bus. Law. 1115 (2000). The new Model Simplified Indenture and its notes are the first revision of this basic business finance document since the Model Simplified Indenture was published in 1983. 38 Bus. Law. 741 (1983).
Uniform Commercial Code
• Participated in the NCCUSL-ALI process working to create revised official texts for UCC Articles 1, 2, 2A, 3, 4 and 4A.
• Advised the NCCUSL on the Uniform Computer Information Transactions Act, Uniform Consumer Leasing Act, Uniform Money Services Act and the Uniform Electronic Transactions Act.
• Worked with the NCCUSL and ALI to obtain uniform enactment of the official texts of Articles 3, 4, 4A, 5, 6 and 8.
• Worked with the NCCUSL and ALI to obtain uniform enactment of revised Article 9 with a delayed uniform effective date of July 1, 2001.
• Established a new committee-wide list serve for use in publicizing events to members of the committee (sign-up is on the UCC Committee home page).
Ad Hoc Committee in Career Forums
The Ad Hoc Committee on Career Forums was established by then-Section Chair Mike Flowers to provide new member benefits relative to lawyers seeking career development in the business law area. To enhance the Spring Meeting, the committee coordinated a full service Career Forum, inclusive of a job fair and educational programming. This forum allowed meeting attendees who need to fill positions (at all levels) at their respective firms or organizations, the opportunity to interview qualified candidates at the meeting.
At the Columbus meeting, the committee’s educational programs exceeded capacity. Topics were "Changing teams: When is it time to make a lateral move" and "Cool jobs for business lawyers."
Ad Hoc Committee on Public Company Information Practices
The Ad Hoc Committee on Public Company Information Practices was actively involved in two major projects over the past year. First, the ad-hoc committee, in conjunction with the committee on Federal Regulation of Securities, submitted a comment letter in May to the SEC regarding proposed Regulation FD, a rule designed to curb selective disclosure of nonpublic information.
Also, the committee continued work on its Report on Public Company Information Practices, which will provide a primer to public companies on communications with the marketplace. This report will also address the SEC’s ultimate rule making on selective disclosure.
Publishing
The Business Lawyer, the Section’s scholarly journal, is the premier business law journal in the country. It contains articles of significant interest to the business lawyer, including case law, analysis, developing trends, book reviews and annotated listings of recent literature. Feature articles this year included:
• Daniel R. Fischel, "Multidisciplinary practice," 55 Bus. Law. 951 (argues that opposition to multidisciplinary practice is misguided and that the legal profession should welcome these new opportunities)
• G. Eric Brunstad Jr., "Bankruptcy and the problems of economic futility: A theory on the unique role of bankruptcy law," 55 Bus. Law. 499 (the essential reasons for having a federal system of bankruptcy)
• ABA Global Cyberspace Jurisdiction Project, "Achieving legal and business order in cyberspace: A report on global jurisdiction issues created by the Internet," August 2000 issue (report on the highly complex jurisdictional issues involving cyberspace)
Business Law Today, the Section’s feature magazine, in addition to a continuing cornucopia of easily digestible articles on a whole range of subjects relevant to today’s business-law practices, featured mini-theme issues on business insurance, moving into the new millennium, U.S.-UK business-law interests as well as white-collar crime.
In addition to these two premier publications, the Section continues to publish outstanding single-title works through its Publications Committee, chaired by R. Clark Wadlow. The following books were published over the past year: The New Article 9 (the ABA’s #1 best-seller), The Election Law Primer, 2nd Ed., Truth in Lending , Handbook for the Conduct of Shareholders’ Meetings, The Portable Bankruptcy Code and Rules, 2000 Ed., Default Provisions of Revised Article 9 , Model Business Corporation Act Annotated 98-99 Supplement and Professional Liability to Third Parties .
Special recognition
Distinguished Service Award. This year, the Section created this award, which is bestowed on an individual in recognition of his or her distinguished career and service to the profession and to the Section of Business Law. This year’s recipient is A.A. Sommer Jr., former Section chair and member extraordinaire. The award was presented at the Section’s Leadership Dinner during the ABA Annual Meeting in New York. In honor of Al’s outstanding contributions to the Section, the award will be renamed the A.A. Sommer Jr. Distinguished Service Award.
We hope these highlights from Section activities over the past year were informative. The Section strives to provide you with the services, publications and programming that you need to serve your clients competently and efficiently and make you a better business lawyer. But let us know what you think. Are we making the grade? How can we better serve you and the profession?
Please contact the Business Law Section at 312/988-5680 or e-mail travisj@staff.abanet.org. to provide your comments or get more information on Section, committee or subcommittee involvement. We want to hear from you!
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