ABA House supports ethics code for top court

In wrapping up its 2023 Midyear Meeting, the American Bar Association’s House of Delegates recently approved first-time policies endorsing “reasonable and appropriate” federal government efforts aimed at combating money laundering as well as a code of judicial ethics binding on justices of the U.S. Supreme Court.

The ABA's policymaking body acted on a range of key policies to conclude the meeting in New Orleans.

Also, the 591-member policy-making House, known as the HOD, rejected a proposal by its independent law school accrediting arm to remove the standard that requires most incoming law students to have a “reliable and valid” admissions test.

But the Council of the ABA Section for Legal Education and Admissions to the Bar could bring the resolution back to the HOD. Under ABA rules and procedures, the council has the last word on any changes to accreditation standards.

Resolution 400, which was a late proposal, urges the Supreme Court to adopt a code of judicial ethics binding on its justices that is comparable to the code of conduct for other U.S. judges adopted by the Judicial Conference of the United States.

Advocates of the change say the absence of a clearly articulated, binding code of ethics for members of the highest court in the country imperils the legitimacy of the court as well as the judicial system.

“It’s high time to set (a code of conduct),” said Stephen Saltzburg, a law professor and former U.S. Justice Department official. “The Supreme Court should have a code of ethics. Exclamation point. The end.”

The new anti-money laundering policy 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 corrupt conduct.

It follows a lengthy review by the ABA Working Group on Beneficial Ownership, and recognizes efforts by Congress, which has passed legislation to combat criminal activity.

A recent law, for example, 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.

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 new policy 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.”

In rejecting the legal education proposal, the delegates expressed their concerns with a proposed change in law school student admissions policies, which would have revised 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 now goes back to the council, which serves as the independent accrediting arm for the 196 ABA-approved law schools.

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 council, which next meets February 17.

The HOD also approved several policies related to criminal justice matters.

Resolution 501 adopts the Ten Principles to Achieve Gender Equity in the Criminal Legal Profession, intended to advance the goal of gender equity among employers, institutions and people who are part of the criminal legal profession.

The principles, for instance, put emphasis on creating culture change by dismantling longstanding barriers in various phases of the criminal justice field, including hiring, retention and promotion of women.

Another resolution urges creation of policies and practices to improve the treatment of persons living with dementia who are involved in the criminal justice system.

In the medical area, policies were adopted 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).

Other HOD proposals adopted as ABA policy includes:

• With a rise in violence and other incidents directed at members of the Jewish faith, revised Resolution 514 condemns antisemitism and proposes certain measures to combat it.

• 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, which was revised, 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 508 supports efforts seeking a wildlife crime protocol to the UN Convention on Transnational Organized Crime to end “wildlife crime,” which is also referred to as “wildlife trafficking.” The report in support of the resolution notes that the absence of a global agreement constrains efforts to effectively prevent and combat wildlife crime and that the current legal framework is outdated and inadequate, including a lack of a universal definition of wildlife and related crimes.