The American Bar Association’s House of Delegates convenes next month in New Orleans to conclude the ABA 2023 Midyear Meeting with about 30 items on the agenda, including resolutions tackling a complex attorney-client topic known as “beneficial ownership” and a proposal to eliminate the requirement for an admissions test for incoming law students.
The in-person-only ABA 2023 Midyear Meeting begins on Wednesday, February 1. The policymaking House, known as the HOD, encompasses 591 delegates from ABA entities and state, local and specialty bar associations and meets February 6 in the Grand Ballroom (5th floor) of the Sheraton New Orleans.
With the posted agenda set weeks in advance of the HOD meeting, late resolutions could be added under certain circumstances to reflect proposed ABA policy responses to national and other developments during the past few weeks.
A beneficial owner is a person who enjoys the benefits of ownership although an asset’s title is listed in another name. Under federal financial regulations, a beneficial owner is anyone with more than 25% ownership of a legal entity, or anyone who controls the legal entity. The ABA resolution seeks to balance the longstanding attorney-client privilege with the demands of governmental entities seeking access to information on criminal activities, such as money laundering, terrorism financing, human trafficking and other alleged corrupt conduct.
Resolution 704 urges that any governmental disclosure requirements protect constitutional rights and confidentiality interests, and not conflict with the ethical duties, professional conduct requirements and regulations imposed on the legal profession by other governmental entities. It also says these requirements should “not undermine the applicable rules of professional conduct to which lawyers are subject.”
Since 2020, Congress has passed legislation to combat criminal activity, including a law that requires certain business entities to file, in the absence of an exemption, information on their beneficial owners with the Financial Crimes Enforcement Network of the U.S. Department of Treasury. The ABA resolution, in part, is in response to the changing regulatory environment as it pertains to attorneys.
Resolution 300 would mark a change in student admissions policies by revising current accreditation Standards 501 (Admissions) and 503 (Admission Test). The latter requires a law school to have a test score for most applicants, and the Law School Admission Test (LSAT) and Graduate Record Examinations (GRE) are now recognized as “valid and reliable” tests under this standard.
The change would take effect for students entering law school in 2026-2027. As approved by the Council of the ABA Section of Legal Education and Admissions to the Bar, the ABA’s independent law school accrediting arm, each of the 196 ABA-approved law schools would be able to determine for themselves whether to require a test score among other factors in the admissions process.
Under ABA rules and procedures, the HOD can review a proposed change to the standards twice and concur, reject or make recommendations. But final decisions rest with the 21-member council, which is recognized by the U.S. Department of Education as the national accreditor of law schools.
Other HOD proposals include:
• With a rise of violence and other incidents directed at members of the Jewish faith, Resolution 514 condemns antisemitism and proposes certain measures to combat it. The resolution notes that compared to most of the world, America has been a haven for freedom, but the U.S. is not immune from the scourge of antisemitism, and the current decade of social upheaval, economic uncertainty and violent political polarization are fanning its flame, both in the United States and abroad.
• Resolution 606 encourages state and territorial bar licensing entities to eliminate from required bar applications any questions that asks about sexual orientation or gender identity and to eliminate processes that could lead to unintended disclosure of sexual orientation or gender identity without explicit consent from the applicant.
• Resolution 603 urges governmental entities to enact statutes, rules and regulations that would make it unlawful for any person, other than law enforcement, to possess firearms on property owned, operated or controlled by any public or private institute of higher education and allow institutions of higher education to restrict or regulate the concealed or open carry of firearms on their campuses if the law permits it now.
• Resolution 506 condemns the unlawful invasion of Ukraine by Russia and urges the Russian Federation to respect the law of war as well as immediately cease hostilities. It also urges the United Nations secretary-general to develop a comprehensive set of proposals for ensuring accountability by legal and physical persons, among other efforts.
• Resolution 600, which is aimed at recognizing a growing problem within the prison population, urges creation of policies and practices to improve the treatment of persons living with dementia who are involved in the criminal justice system.
The HOD will also consider several resolutions related to health and medical issues. They include measures that oppose governmental efforts that do the following: attempt to impose medical or surgical intervention on minors with intersex traits (also known as variations in sex characteristics) without the minor’s informed consent or assent (511); unreasonably interfere with a person’s abilities to direct their own health care, including their right to refuse unwanted medical treatment and their legally authorized substitute decisionmakers’ rights to refuse medical treatment on their behalf (512); and restrict the right of any individual to travel interstate to access medical care (513).
HOD proposals do not become ABA policy until approved by the House, which meets twice annually. The next HOD meeting is scheduled for early August in Denver.
