House of Delegates adopts new association policy
In Chicago during the 2005 ABA Annual Meeting, the ABA House of Delegates — the association’s policy-making body — voted to support attorney/client privilege and the work product doctrine, and to oppose their erosion by the government through the routine practice of seeking waiver of these protections through granting or denying of benefits or advantages. In a related matter just following the Annual Meeting, the ABA wrote to the U.S. Sentencing Commission urging it to reconsider recent changes to the federal Sentencing Guidelines that encourage the government to require waivers in order for organizations to show “thorough” cooperation and qualify for a reduction in the culpability score — and a more lenient sentence. The letter points out that this weakening of the privilege, instead of aiding government prosecution of corporate criminals, makes detection of corporate misconduct more difficult by undermining companies’ internal compliance programs and procedures.
The House of Delegates also voted to support federal reporters’ shield legislation now being considered by Congress, to help protect the public’s access to information. When government seeks to compel members of the media to name confidential sources, the ABA policy calls for a demonstration that the information sought is essential to a critical issue, that all reasonable alternative sources have been explored, and that the need for the information clearly outweighs the public interest in protecting the free flow of information.
Remarking on the House action, ABA President Michael S. Greco said, “Our action today acknowledges the important role of journalists and the media in providing the public with significant information to ensure an informed democracy, and reporters need to be able to protect sources in order to get that information. But it also recognizes reasonable standards for compelling journalists to name sources or disclose information gleaned in gathering news.”
The House of Delegates also adopted a series of policies designed to improve security for federal and state judges, both in and out of court. Those measures include urging Congress and the Department of Justice to consider whether existing federal laws are adequate to protect the safety of all persons involved in the federal judicial process, including safety considerations generated by the publication of personal information about judges and other judicial officers that has been redacted from their Federal financial disclosure forms; support for steps to improve security for state court judges; and creation of a National Clearinghouse on Federal and State Court Security. In a separate but related action, the House urged all Americans, including elected officials, to defend the role of the judiciary in maintaining fundamental liberties under the U.S. Constitution and deploring attacks on the judiciary that demean it as a separate and co-equal branch of government.
A summary of the recommendations presented to the House, with links to the full recommendations and accompanying reports, is here, and a rundown of all of the action taken can be found here. Some of the topics the delegates addressed included management of asbestos litigation, reauthorization of the Voting Rights Act, erroneous convictions and much more.
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