The American Bar Association House of Delegates wrapped up its recent session by adopting new policies, including a resolution that strengthens a lawyer’s obligation to access whether a client seeks to use the lawyer’s services to further a crime or fraud before accepting or maintaining representation.
The House, known as the HOD, eventually approved 216-102 an amendment to Model Rule 1.16: Declining or Terminating Representation of the ABA Model Rules of Professional Conduct. The change represents a second step this year in efforts to protect lawyers from unwittingly becoming involved in a client’s or prospective client’s criminal and fraudulent activities.
In February, the HOD, comprising 597 delegates from ABA entities and state, local and specialty bar associations, adopted a measure that updates the ABA’s policy that endorsed for the first time “reasonable and appropriate” federal government efforts aimed at combating money laundering. The policy seeks to balance the longstanding attorney-client privilege with demands of governmental entities seeking access to information.
Both federal lawmakers and the U.S. Department of Treasury officials have urged the ABA to strengthen its model rule on client review obligations because of concern lawyers’ services can be used for money laundering and other criminal and fraudulent activity. Typically, this happens when a client asks the lawyer to hold money in a trust fund for a business deal, only to ask for the moneylater because the deal purportedly did not proceed.
The HOD took action on more than 50 agenda items at meeting at its 2023 ABA Annual Meeting in Denver. It also approved a wide-ranging group of other policies, including several in the criminal justice area.
Resolution 502 sets out 14 principles to reform plea agreements, and Resolution 503 urges governmental entities both repeal laws that allow involuntary servitude through prison labor and ensure all prison labor is voluntary, safe and fairly compensated. Currently, the 13th Amendment of the U.S. Constitution, which forbids slavery and involuntary servitude, provides for an exception for punishment of crimes.
The HOD also adopted Resolution 512, which urges governmental jurisdictions where capital punishment is a possible penalty to take steps to prevent discrimination based on race, ethnicity, gender or gender identity of the victim, defendant or both. The ABA has no position on the death penalty per se but has policies that seek its use in a fair way.
The HOD approved Resolution 603, which revises the Ten Principles of a Public Defense Delivery System. The new policy includes recommendations involving workload management for public defenders and urges public bodies to implement necessary legal and policy changes where deficiencies may exist.
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