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					                    ANNUAL MEETING 2004 – ATLANTA, GA
                         EXTENDED COUNCIL AGENDA
                           SATURDAY, AUGUST 7, 2004
                Wyndham Atlanta Hotel – Centennial Ballroom B – 7:30 a.m.

               To attend by telephone, dial 1-888-222-1994, Meeting ID #7874

TIME         ITEM                                              PRESENTER(S)
7:30         Call to Order, Introductions                      Boswell
7:40         Approval of Spring Meeting Minutes                Grella
7:45         Chair’s Report                                    Boswell
7:55         Finance Report                                    Greene
8:00         Director’s Report                                 Smith

Other Activity Reports
8:10          Marketing & Membership Development               Hartley
8:15          Education Board                                  Henslee
8:20          Practice Core Groups
                      Marketing                                Buchdahl
                      Management                               Karnstein
                      Technology                               Keane
                      Finance                                  Bilinsky
8:30          LPM Publishing                                   Siskind / Trautz
8:40          Law Practice Magazine                            Gibson / Smith
8:45          Law Practice Today Webzine                       Tredennick / Smith
8:50          ABA TECHSHOW®                                    Calloway

Delegates’ Report and Action Items
9:00         Delegates’ Report                                 Lambreth / Munneke
             Chair-Elect’s Report and 2004-05 Budget           Robertson / Greene

9:30         Adjourn for General Membership and Election Meeting
                   (see separate program)
                      Law Practice Management Section Council Meeting
                              Spring Meeting – April 24, 2004
                                     New Orleans, LA

Present: Susan Boswell, Mark Robertson, Carl Roberts, Tom Grella, John Tredennick, Larry
Smith, Gary Munneke, Susan Lambreth, Vedia Jones-Richardson, Heather Jefferson, Jim Keane,
Ann MacNaughton, Ed Poll, Arthur Greene, Susan Raridon Lambreth, Bill Henslee, Bill Gibson,
Stewart Levine, Dolores Wilson

Absent Council Members: Donna Fraiche, Barry Brickner, Joe Kashi, Dan Coolidge, Greg
Siskind.

The meeting began with a breakfast for all of those in attendance. There were 48 persons in
attendance (including Council). The Chair called the meeting to order at 8:20 AM.

Susan Boswell welcomed the attendees to the meeting in New Orleans. She then recognized
Client Concepts and New Precedent, Nextel and LLM Inc. representatives to the meeting, as our
sponsors for the breakfast.

There was a motion and second to approve the meeting minutes from the 2004 Mid Year
Meeting. It passed unanimously by voice vote.

Nominating Committee and Chair Elect Report – Mark reported that the following be
nominated: Council – Re-nominations: Ann MacNaughton, Heather Jefferson, James Keane.
New Nominations: Walt Karnstein, Aman Bagga, James Calloway, Andrea Hartley, Richard
Granat, Dennis Kennedy, Marc Lauritsen, Bruce Olsen. Secretary – Vedia Jones-Richardson,
Vice Chair - Tom Grella, Chair Elect - Carl Roberts. ABA Nominating Committee
Representative – Bill Gibson

The budget process is well underway, and it will be a very lean but doable budget. It is still
$40,000 from being balanced. Mark reviewed substantive plans for next year, and noted that
the Fall Meeting is in Colorado Springs, CO in November, Midyear meeting is in Salt lake City,
Utah, and announced that the spring meeting will be May 12 – 15 in Orlando, Florida at the
Boardwalk Hotel – Disneyworld.

Delegates Report and ABA Policy Issues – Susan Lambreth reviewed some of the items which
will be coming before the House of Delegates at the ABA Annual Meeting in Atlanta. She
indicated that there are few controversial items. Gary indicated that one item which may be
controversial before the House of Delegates involves the Standing Committee on Client
Protection proposal which requires that attorneys notify their State Bars of their insurance status
(a reporting requirement similar to MCLE status reporting requirements). Susan Boswell also
mentioned that the International Law Section has recommended changes to governing rules
which would allow International Associates to sit on their council. Gary noted that this is
significant to our Section as we have asked, in the past, to do the same thing.
Chair’s presentation – Susan Boswell began by giving a huge “thank you” to our staff, and
introduced those in attendance. She thanked Bill Henslee for arranging music at the 30th
Anniversary Party of the Section held two days earlier. Susan then gave a brief overview of
officer activity over the past several months. She indicated that we have not yet heard about
ABA Presidential appointments, but they should be announced in the next few days. The Section
will be more organized with respect to appointments in future years. Our work with, and
presence in, the SOC has been more visible this year. The ABA is predicting a huge deficit over
the next three years ($7.9 million). There will be another year of the $1 head tax on Section
members. The officers of Sections met on March 12, 2004 with the ABA officers in Chicago, at
the request of the SOC to make the point that the Sections want more of an input into the
governance of the Association. Tom Grella, Carl Roberts and Larry Smith attended the meeting
in Chicago. A report was issued by the SOC after the meeting. The report suggested many areas
where the Association could save costs, and indicated some governance issues that might be
looked at. Susan reported on the Leadership Task Force that she appointed for the year. That
group has met and will continue its work. In addition, she reported that the Core Groups have
put together exciting programs, the magazine is an incredible resource and the publishing board
continues to do a great job. She thanked everyone for the great work.

Finance Report – Arthur indicated that at this point in the year we have some concern that we
might end up with a slight deficit for the year ($20,000 to $30,000 for the year) if things continue
on as they are without any changes being made. He reviewed the specific line items and where
they stand at the present time with respect to the budget. He noted that dues revenue is only at
92% of budget for the year (and normally at this time of the year it is at 97%). Arthur suggested
that we are likely only going to make budget this year by cutting expenses, since revenues are
generally set. He asked that all entity leaders look at their budget and determine if any line item
of expense can be deferred or eliminated. Susan indicated that she and Arthur would be
contacting major engine leaders to see if there are ways to cut back on the expense side.
Regarding the budget for next year, he and Mark Robertson are working on getting the budget to
balance.

Director’s Report – Larry reported on membership first, and the fact that our membership
numbers are down, but it is consistent with what we have seen in past years for this time of the
year. There is some optimism that membership will increase to 16,000 by August, but only
through our hard work and initiatives. He indicated that we are targeting young lawyers and
women lawyers. The campaign took the form of post card marketing, followed up by e mail
marketing. The results so far are very encouraging. Larry indicated that he believes that he has
good news on how our Section is viewed by the ABA overall, due to the hard work of many
within the Section. Staff is participating on joint staff-membership committees. Larry also
stressed how talented our staff is, and how happy he is that we are able to retain their services.
He encouraged free and open communication between volunteer members and staff, with
volunteers establishing the agenda and priorities and staff giving the needed support. Larry
noted that staff will be moving in May to the new facility in Chicago (week of May 17th). There
was a question whether the move will save us money with respect to space expenses. The
answer is no. However, there are some expense benefits to the move which are cannot be
plugged into a budget.
Law Student Division Liaison – Marissa Davies reported on the extent of her participation in
the Section. She thanked the Section for allowing her to participate in the Section.

TECHSHOW Board – Jim Calloway reported that 1450 people attended TECHSHOW this
year. He highlighted the key note address by the two leaders of West and LexisNexis. Jim
pointed out the various things that will be done for improvement this year. Partnering with the
RPPT Section this year did not receive the highest review by those attending, however we will
continue to attempt to partner with other ABA entities. Jim stressed that TECHSHOW should be
supported and promoted by all of those in the Section. Susan noted that TECHSHOW’s profit
was up from the previous year, even though below budget for this year.

Publishing Board – Reid Trautz reported for the Board, giving some of the highlights. He
reported the good news that the Publishing Board is looking at slightly exceeding its budget for
the year. Success is due to a great backlog of books and promotion of these sales. Eight
additional books are in the works right now. He also reviewed the publications that have come
out recently and are the best sellers. Reid encouraged actives to actively promote our
publications by whatever means possible, and to keep the Board aware of events that they are
aware of where publications might be promoted. Larry noted that our Publishing Staff has been
influential in the ABA at large. He gave the example of changes in postage policies,
developments with the ABA Web Store and changes in inventory management.

Magazine Report – Bill Gibson reported that there are changes and improvements that are
being looked at in the area of advertising with the Magazine. He acknowledged all of those
persons who spend much time in producing a quality magazine.

Webzine Board – John Tredennick reported that Law Practice Today has now finished its first
year in operation, which is significant because it is a new “tradition” for the Section. It is a tool
which gets content to more and more people. He noted the contrast between costs for the
webzine (almost $0) to the old paper form of sending out newsletters (approximately $33 per
member). John pointed out that Fred Faulkner has done much to make the Webzine a success.
He also noted that Larry Smith and Sarah Oaks have done much at the staff level. John then
noted the great authors that have contributed to the Webzine, as well as his very active Board.
The issue is being put out on a monthly basis, and he encouraged articles from everyone.

Standing Committee on CLE and Programs – Bill Henslee reported on five programs that
were presented at the New Orleans meeting. Twenty two people paid to attend. At annual we are
planning on seven programs. Bill briefly mentioned plans for programming during the next bay
year.



Marketing Core – Steve Silverberg reported on the activities of this Core Group, indicating the
various programs and articles that are being promoted and encouraged. Web based marketing
issues is a key area that hey are looking into with respect to content. He briefly reviewed some of
the other areas where the Core Group is exploring content. Heather Jefferson introduced new
Women Rainmaker attendees. A reception is planned for the annual meeting. She noted that
Women Rainmakers have a specific web page within the Section’s web site. Women
Rainmakers have been asked to be a part of two different outside organization events (they will
be putting together panels for the events). Women Rainmakers also co-sponsored an event in
Washington, DC.

Management Core – Walt Karnstein reported on the annual meeting program being planned and
which Susan Lambreth will be presenting. He also reported on additional programming and
publications that will be developed. The Core Group will be asking to present a program at the
annul meeting in 2005 as well.

Technology Core– Jim Keane reported that the Technology Core Group has been working on
programming for the annual meeting in Atlanta, and believes that there may be opportunity for
great exposure due to the fact that many other entities are not offering technology programming.
He reported that the following are planned: Technology for Lawyers on the Go; Red Hot Trial
Technology: Creating Courtroom Presentations that Win; and Computer Security for Legal
Organization and Client Communications. Jim also briefly overviewed the partnership with the
National Conference for State Courts to be held in Las Vegas in December 2004. The Core
Group has brainstormed on how it can divide itself into different areas of interest which its
members may have. He indicated that they have focused on several areas of interest: 1) Best
Practices to Maintain and Dispose of Electronic Client Records, 2) Electronic Discovery for
Everyday Cases, 3) Leverage Knowledge Management Down for Smaller Firms, 3) Lessons
from Truly Paperless Law Firms. Marc Lauritsen reported on the eLawyering Task Force,
referring the group to the report in the materials. Richard Granat reported on activities of the
association in the area of “unbundling”.

Finance Core– Dave Bilinsky reported on the various publications that have been put out by the
Section (and Core group members) in the area of finance. The future includes working on
content in the area of finance (for issues of the magazine), as well as additional programming
and publications.

Delegates Extended Report – Gary reported on the new “extended” group of delegates (those
delegates who are also members of our Section). In addition, there is an effort underway to find
those members of other committees who are also members of the Section. It is the hope of our
Delegates that we can communicate our activity to them, because they are influential in other
areas of the Association. It is hoped this network can be built over the next year. Gary also
indicted that this network of allies might be extended to non-ABA bar entities as well. Gary
reported on the “Blanket Authority” proposal before the House of Delegates. Last year the
Board of Governors revised the policy so that the BOG had a greater ability to block Section
activities in the area of lobbying. A few Sections have decided to bring the issue before the
House of Delegates. Sections generally support the resolution to change the BOG policy. Susan
Boswell suggested that we discuss this over LPM announce. Gary then brought forward the
issue with respect to malpractice insurance disclosure, being brought up as a resolution before
the House of Delegates by the Standing Committee on Client protection. Heather Jefferson
noted that the proposed rule is very much similar to the one adopted in Delaware, and she is
interested in comment from others. She noted that the public disclosure requirement of the rule
is not required in Delaware. Discussion ensued. There was a motion brought by Ed Poll and
seconded by Stewart Levine that we vote against the proposed resolution. There was discussion
about the motion, and some discussion that we might wait to take a position until we find out
more about its background and support. Ed Poll agreed to table his motion to the next meeting
of the Council, and Stewart agreed to the table of the motion.

Ed Poll briefly reported on California’s move against LPM as a designated category of MCLE,
and that it is also on the forefront in the State of Texas. Ed indicated that he thinks we should
take this into consideration with respect to our future work, and that we should be involved in the
discussion.

Susan Boswell made some final comments regarding the effectiveness of Section work to date,
and commended those involved in this good work. The meeting was adjourned at 10:53 A.M.

Respectfully submitted,

Thomas C. Grella, Secretary
                        Membership and Marketing Report
                                4/1/04 – 6/30/04
                                   Quarterly Membership Update
Members As of June 30, 2004:
Lawyer members          10,852
Associate Members        1,208
All Law Students         2,422
                                            Total: 14,482

Recruitment and Retention Efforts
       The LPM Membership & Marketing Department launched a 71,000-piece campaign in January
       mailing targeting ABA women within the U.S. who are not a member of the Law Practice
       Management Section. This campaign was unique because it offered LPM membership at $40
       with the added benefit of automatically connecting that person with ABA Women Rainmakers.
       We have sent two follow up emails during this quarter. The campaign has so far resulted in
       approximately 250 new members of both LPM and ABA Women Rainmakers (300 at press time).

       In late March we launched a 74,000-piece campaign mailing to Young Lawyers. During the
       current quarter we have conducted one follow up email push. This campaign has not been as
       successful as the women’s campaign; we have logged 27 in this quarter (32 at press time).

       In April, we conducted an online survey of TS attendees which encouraged membership.

       Also in April, we sent letter to every student member to notify them that LPM is offering free
       student e-memberships starting in the 2004-2005 fiscal year. Invoices went out later that month.
       We acquired 357, 547, and 338 new student members in April, May, and June respectively. The
       new joins receive an e-welcome packet.

       In May, we were represented at a legal technology conference in California, where Larry spoke
       and distributed membership materials and book catalogs.

       LPM was able to insert its magazine into every tote bag (641 attendees) at the Missouri State bar
       conference in June.

       In early June, we were represented at the Missouri Bar Solo and Small Firm Conference where
       we sold $2,482.68 in books and gained six new members and the Indiana Solo and Small Firm
       Conference where we sold $1,527.99 in books and did not sell any memberships.

       Membership materials, book catalogs, and magazines were distributed at the Oklahoma
       State Bar S and SF conference in June.

       A sub-committee of the Membership and Marketing Board developed a member survey
       to get feedback from members on all our benefits and services. The survey will be
       distributed in July.

       We send “Welcome Packets” to our new Section members each month, which welcomes
       new members and encourages them to take advantage of Section benefits.
       Mailings are sent each month to people who have dropped the Section inviting them
       back.

       We send letters to people who have renewed their membership, but who are not NEW
       members, thanking them for reinstating.

       We send letters to new ABA members who have expressed interest in one of our areas of
       concentration. (1x month)

       A membership application is included in every LPM book.

Online applications:
LPM staff and board reply weekly to each new member who joins online to welcome them to the Section.
                                          LPM Publishing
                                   Law Practice Management Section
                                      Year in Review 2003-2004

This year, LPM Publishing once again produced notable books covering finance, technology,
management, marketing, and career issues, providing instruction and resources ranging from the
basics to the innovative to the cutting edge.

Fourteen new publications will be released in FY 2003-2004, including the fifth edition of the best-
selling ABA book of all time. Invaluable advice from a host of distinguished legal marketing
authorities and practitioners can be found in revised editions of two of our most popular marketing
titles. Our technology line is being bolstered by five strong new titles that are already becoming best-
sellers as they fill the demand for solid instruction on legal applications of important technologies.
One of these titles comes with an optional subscription to a companion monthly e-newsletter—the
first product of this kind ever offered by ABA Publishing. We’ve once again teamed up with leading
legal consulting firms Altman Weil and Hildebrandt to provide updated information on compensation
plans and law firm mergers. We published the fourth and final volume in our outstanding Essential
Formbook series. Our indispensable law firm policy and procedures manual was revised and fully
updated. And, we were delighted to release a unique and insightful guide for women lawyers of all
ages. Together these publications comprise one of the most diverse and impressive lists of new
releases ever for LPM Publishing!

January 2004              Wills, Trusts, and Technology:
                          An Estate and Trust Lawyer's Guide to Automation, Second Edition
                          (co-sponsored with the ABA Section of Real Property, Probate, and Trust Law )
                          by Daniel B. Evans

                          The Lawyer's Guide to Fact Finding on the Internet, Second Edition
                          (CD-ROM included; e-newsletter subscription available)
                          by Carole A. Levitt and Mark E. Rosch

February 2004             The Lawyer's Guide to Marketing Your Law Practice, Second Edition
                          Edited by James A. Durham and Deborah McMurray

March 2004                The Lawyer's Guide to Palm Powered™ Handhelds
                          by Margaret Spencer Dixon

April 2004                Compensation Plans for Law Firms, Fourth Edition
                          edited by James D. Cotterman, Altman Weil, Inc.

                          How to Start & Build a Law Practice, Platinum Fifth Edition
                          (co-sponsored with the ABA Law Student Division)
                          by Jay G Foonberg

June 2004                 Anatomy of a Law Firm Merger:
                          How to Make--or Break--the Deal, Third Edition
                          (CD-ROM included)
                          by Hildebrandt International
July 2004     Women-at-Law: Lessons Learned Along the Pathways to Success
              by Phyllis Horn Epstein


              Law Office Policy and Procedures Manual, 2004 Fourth Edition
              (CD-ROM included)
              by Robert C. Wert and Howard I. Hatoff

              Law Office Policy and Procedures Manual, 2004 Supplement
              (CD-ROM included)
              by Robert C. Wert and Howard I. Hatoff

              The Lawyer’s Guide to Adobe® Acrobat®
              by David L. Masters

August 2004   The Lawyer's Guide to Summation®
              by Tom O'Connor

              Marketing Success Stories:
              Conversations with Leading Lawyers, Second Edition
              By Hollis Hatfield Weishar and Joyce K. Smiley

              The Essential Formbook:
              Comprehensive Management Tools for Lawyers, Volume IV
              (CD-ROM included)
              by Gary A. Munneke and Anthony E. Davis
                              EDUCATION BOARD REPORT




The Education Board will present several programs at the Annual Meeting. It has been a very
successful year for educational programs this year. The Board offered CLE programs at each
meeting this past year.

Micah Buchdahl, Steve Gallagher, Carol Phillips, and Ellen Wayne were the members of the
Board chaired by Bill Henslee.

The following information should be helpful for the upcoming year.

   1.     Education Board member roles: The Board will set deadlines for the submission of
          program proposals for the Fall, Spring, and 2005 Annual Meeting. In addition, the
          Board will establish a deadline for the submission of the written materials for each
          approved program so that the Board members can review and approve the materials
          for each program. The Board will coordinate with the Core Group leaders for the
          generation of programs. The program submission form may be found online at the
          LPM website.

   2.     Fall 2004 Colorado Springs CLE Programs: The Board approved a one day program
          on “How to Increase Profitability in Your Firm.” The program will consist of half a
          day of marketing programs and half a day of finance programs. The Women
          Rainmaker’s group is interested in presenting a program. The Colorado Bar or a
          section will cosponsor the program and the Colorado CLE group will market the
          program.

   3.     Midyear Meeting Salt Lake City 2005: The Section will not be spending resources to
          present programming at the Midyear Meeting. Any Section entity or individual
          interested in presenting a program needs to find a cosponsor to cover all costs
          associated with the program.

   4.     Spring 2005 Orlando: The Board will be accepting program proposals for the spring
          meeting. A program by Disney on “What Can Disney Teach Lawyers About
          Marketing?” will be solicited.

   5.     Beginning in September, the Section will offer monthly Teleconference CLE
          programs coordinated through the ABA CLE Center. The programs will be offered
          on the same day of each month to build a regular and loyal following. Suggestions
          included establishing a themed semester program with a certificate of completion
          awarded to all who complete the curriculum. Magazine articles scheduled for
          publication may serve as a source for program ideas and as the written materials for a
          program. The Board will initiate program ideas in addition to soliciting ideas from
          Section members. The program submission form will be used for program
          submissions. Programs should have no more than three (3) speakers. Each speaker
          should have a voice that is easily distinguishable from the voices of the other
          speakers. Gender diversity is encouraged. According to the CLE Center, the most
          successful programs include the author of a book or article on the topic and/or the
          lawyers who participated in the case or participated in the development of the
          resolution of the issue. Ideas for the initial programs include the following: (1)
          Suddenly Solo, (2) Marketing Ethics, (3) Electronic Discovery, (4) Adobe Acrobat,
          (5) E-filing, (6) Buying Law Office Technology, (7) How Not to Commit Malpractice
          with your Computer, (8) Managing Electronic Client Records, (9) Technology for
          Lawyers on the Go, (10) Technology for the Rest of Us, (11) Top 10 Ways to Grow
          your Practice, (12) E-mail and Spam Management, (13) Techniques to Maximize
          your Return On Investment, (14) Client Crisis and Litigation Publicity, (15) Wireless
          Security, (16) Substance Abuse, (17) Disaster Planning. In addition, programs by Ed
          Poll and Jay Foonberg based on their Section Publication will be considered.

Programs will be developed for export to the Business Law and Litigation Sections. The programs
must be self-contained units that will complement the CLE programs.
      ABA LPM PRACTICE MARKETING CORE GROUP PROGRESS REPORT

                         ABA ANNUAL MEETING, AUGUST 2004


Submitted by Micah Buchdahl, Core Group Chair, and Heather Jefferson, Vice-Chair and Chair
of Women Rainmakers

Micah and Heather will both be in attendance at the Annual Meeting, including Council. We
have no action items that require discussion. We would be happy to further discuss our progress
and accomplishments at the meeting. Micah will need to leave the meeting early for the core
group’s CLE programming.

The Practice Marketing Core Group, which includes the Women Rainmakers, is having a
successful year. The MCG has added a number of new members in recent months. Each is
greeted by a personalized e-mail from LPM followed by a personal e-mail from Micah
welcoming them and encouraging participation.

For the upcoming year, Steve Silverberg, a partner at Wilson Elser and active “active” during the
last two years, will serve as Vice-Chair.

The core group plans on becoming more formalized this year, with different interested actives
taking the lead on our planned activities, including publishing and programs.

EDUCATIONAL PROGRAMMING:

Annual – The MCG programs include a Crisis PR CLE and Marketing Ethics CLE.

Fall – Programming pending, to be determined at Annual

Spring – Programming pending

PUBLICATIONS

MCG actives continue to submit regularly to the magazine, webzine and publications. We also
submitted articles that were published by the YLD monthly.

COMMUNICATIONS

MCG has used our listserv for e-mail communications to promote events and continually
encourage participation. More than 20 people attended the MCG meeting in New Orleans during
the spring meeting, including some new faces. There will be an informal gathering of the MCG
in Atlanta, at the gathering reception and following our programs on Saturday. There will be a
follow-up MCG Conference Call in the weeks following Annual to finalize programs for the fall
meeting.
WOMEN RAINMAKERS

The WR continue to hold monthly conference calls and schedule numerous programs and events
that have been well-attended and garnered excellent law firm sponsorship support.

Recent and Upcoming Events & Programs:

Philosophy of Rainmaking
Legal Sales and Service Organization
Raindance Conference 2004
June 24 – Boston, MA

Developing business and building a referral network are skills that lawyers need throughout their
entire careers. During this program, panelists from various law firm perspectives will respond to
provocative questions regarding rainmaking techniques that work, those techniques that are
ineffective and the issues surrounding the law firm culture necessary to support rainmaking
activities. Bring you own questions about the philosophy of rainmaking. Whether you just
started practicing law or are a seasoned professional looking to develop your own book of
business, this program will get you onto the path of success!

Proven Partnering Tactics – Best Practices for Women
The National Institute for Women in Law Firms
NorthStar Conference
July 14 – McLean, VA

ABA Women Rainmakers Networking Reception
ABA Annual
August 6 – Atlanta, GA

ABA Real Property, Probate and Trust Law Section
Fall 2004 CLE Meeting
Rainmaking – A Dance Everyone Can Learn
Friday, October 1, 2004
4:15 p.m. – 5:15 p.m.
Boston, MA

Rainmaking is a skill that every lawyer needs to develop. Whether you are in private practice,
serve as in-house counsel or represent public entities, enhancing your personal reputation and
skill set will help keep clients satisfied, improve your practice experience and increase your
ability to expand your professional horizons. Everyone generates business differently. Our
panelists have significant experience in successfully generating legal business. The goal of this
workshop is to share a wide variety of strategies for professional growth and business
development options to make your practice more successful and satisfying.
         ABA-LPM PRACTICE TECHNOLOGY CORE GROUP

                         Report to LPM Section Council
                                     August 7, 2004

The Practice Technology Core Groups produced three educational programs and started
three formal initiatives to help the Section regain its position as the ABA thought leader
on the legal profession’s use of technology. The eLawyering Task Force has continued its
efforts to enhance lawyers’ ability to practice law over the Internet. We have scheduled
an e-Courts/eLawyering conference in Las Vegas from December 13-15 at the Mirage
hotel in conjunction with the National Center for State Courts.


                            Annual Meeting Programs
At the ABA Annual Meeting in Atlanta we put on the following programs:
    • Technology For Lawyers On The Go: Cell Phones, PDA’s, Blackberries and
      Tablet PC’s (Tom 0’Connor and Tom Mighell)
    • Red Hot Trial Technology: Creating Courtroom Presentations that Win
      Good and bad example of high tech witness examinations with a jury of lawyers
      selected from the audience. (Todd Miller and Bryan Jones CPA)
    • Computer Security for Legal Organizations and Client Communications:
      Hype, Hope, and the Blast Furnace of Reality
      Black hat / White Hat: two top computer security experts expose the vulnerabilities
      of law firm stock security defense of firewalls and anti-virus software. (Computer
      Security authors, Dan Geer and Gary McGraw)


                         eCourts/eLawyering Conference
We are partnering with the National Center for State Courts to hold the e-
Courts/eLawyering conference in Las Vegas from December 13-15. We encourage LPM
actives to attend and encourage wired lawyers to join us and the technology thought
leaders from the Judiciary at the Mirage hotel. The program schedule and list of groups
who may hold meetings at the conference follows.


                              eLawyering Task Force
The eLawyering Task Force continues to monitors issue impacting the delivery of legal
services over the Internet under the leadership of Richard Granat and Marc Lauritsen.
(Separate report follows.)
ABA-LPM Technology Core Group                                          Report to Council
                                                                       August 7, 2004

                       Technology Leadership Initiatives
We have started three new technology initiatives and working groups. Their mission
statements and plans also follow this summary:
      1) Knowledge Management for Medium Size Legal Organizations
         Ron Friedmann will lead an initiative to bring the lessons of Knowledge
         Management learned in large firms to a level that can be adapted for use in
         medium size legal organizations. The first goal is to conduct a web-based
         forum to determine the needs, requirements, and potential demand for better
         ways to manage work product and expertise.
      2) eDiscovery in Everyday Cases
          Craig Ball and George Socha will lead an initiative on best practices and
          standards for Electronic Discovery (eDiscovery) in everyday cases with eMail
          and electronic documents.
      3) Retention of Electronic Client Records
         John Montaña and George Cunningham will lead an initiative to assemble
         guideline and standard on law firm record retention policies to define best
         practice on how legal organizations can store electronic records and
         communications from client under laws, regulations, and ethical requirements.
         They are already working on an LPM Book on Records Management for Law
         Firms.
                                          * *    *
   Each of these initiatives will utilize web forums, discussions lists, blogs, Wiki’s and
   web conferencing to develop working groups and larger communities of interest. They
   will also produce CLE programs (live and virtual) as well as submissions for Law
   Practice Magazine and Law Practice Today!
   (P.S.: If you have not seen the July issue of Law Practice Today, please check out an
   outstanding discussion forum on Electronic Discovery organized by Dennis Kennedy.
   This is an example of how we can offer high value, timely and digestible information
   to our technology constituency.
   The key to the success of the groups is not how many programs or publications they
   produce but whether they can establish a community of Section Actives who are
   engaged with the issue at hand. The other key is developing a clearly defined end-
   product -- in a set time frame -- that brings genuine value to the legal profession’s
   utilization of technology.
   Respectfully submitted on behalf of the Technology Core Groups,
       Jim Keane
ABA-LPM Technology Core Group                                        Report to Council
                                                                     August 7, 2004

                          eLawyering Task Force
                   Mission and 2004-2005 high-level plan
                 Richard Granat and Marc Lauritsen, co-chairs

  Mission      Our mission is to learn and teach about the use of Internet technologies
               for legal work. While admittedly just a subset of the vast legal
               technology world, elawyering and its lawyer-less analogs present
               fundamental challenges for our profession. We’re interested in how
               lawyers can best use those technologies in their distinctive professional
               activities. But we’re also involved in the development of standards for
               information services offered by non-attorneys and for the exchange of
               legal data with courts and other entities. And the study of regulatory
               constraints to experimentation in the delivery of legal services in this
               domain.

               The eLawyering Task Force seeks to help prepare the legal profession
               for some of the coming changes. We are a “vanguard of the bar.”

               Besides helping lawyers to survive and flourish, we have a strong
               interest in access to justice, consumer fairness, and “digital
               multiplication” (an antidote to the digital divide).
 Upcoming             We expect to organize a work session or forum on specific
 activities           elawyering topics for the LPM fall meeting in Colorado
                      Springs with participation by the whole task force through web
                      conferencing.
                      We are leading the development of the eCourt/eLawyering
                      conference in Las Vegas in December (13th-15th) in partnership
                      with the National Center for State Courts.
                      We have not given up hope on finding a web platform to deliver
                      another Web Conference Seminar on elawyering topics.
                      We will promote the Best Practices for Legal Information Web
                      Sites standards by developing some public service
                      announcements (for TV or radio).
                      We expect to run a special elawyering track at the Techshow
ABA-LPM Technology Core Group                                     Report to Council
                                                                  August 7, 2004

eLawyering (Continued)

   Ongoing
  initiatives         We maintain a website – www.elawyering.org
                      We develop articles on the elawyering concepts for Law
                      Practice Magazine and and the Law Practice Today! webzine
                      We’re reviewing legal information websites for their
                      performance against the Best Practices adopted by the ABA
                      House of Delegates.
                      We will continue to promote XML standard on Court Filing,
                      On-line Dispute Resolution (ODR); Case Management
                      Systems, eContracts, eNotary, and Integrated Criminal Justice
                      Standards using the Global Justice XML Data Dictionary
                      GJXDD) within the ABA and in the global standards setting
                      community.
                      Continue Richard Granat’s work with the ABA Standing
                      Committee on the Delivery of Legal Services.
                      Continue Jim Keane’s and Marc Laurtisen’s work with the
                      Case Management XML with the Legal Services Corporation.
                      Seek out additional LPM Actives who are interest in working
                      on LegalXML OASIS activities with Jim Keane.
ABA-LPM Technology Core Group                                           Report to Council
                                                                        August 7, 2004

           Initiative on Knowledge Management for Smaller Firms
                       2004-2005 Mission and Action Plan
                                 KM WORKING GROUP
                               Chair: Ron Friedmann, Esq.
This plan outlines the goals and activities of a new ABA LPM Technology Core Group
initiative to expanding the role of Knowledge Management in small to medium law firms.

The best approach to knowledge management (“KM”) is much debated and KM programs
have run into bumps. Nonetheless, KM has forward momentum among large law firms.
Is KM valuable to medium- and small-size law firms? Is it necessary? What are the
benefits? The costs? How can a firm go about starting a KM program? Questions
abound and the LPM plans to answer them. LPM will convene a working group of
partners from small- and medium-size firms to assess the level of interest in KM. Given
sufficient interest, the group would help define how LPM could be most helpful.
Our initial plan is to convene a group of 8 to 16 partners to participate in one or two web-
and phone-based conferences (based on software such as LiveMeeting or Webex). Each
“web meeting” will last 45 to 60 minutes and be moderated by leading KM practitioners.
The main order of business will be to assess (1) familiarity with KM, (2) potential value of
KM to smaller and medium firms, and (3) if there is value to KM, what aspects of it.
During the conference, we will keep all lines open so that anyone can participate and use
the web aspect to share a few slides and poll the group on key issues.
If the one or two initial meetings indicate sufficient interest in KM, the Working Group
can then implement a formal plan for more in-depth KM activities with broader
participation by LPM Section Actives and colleagues interested in KM. This larger
working group would consider and plan focused and achievable objectives such as:
       •   Oversee a well-designed and properly-administered web-based survey to
           assess smaller law firm needs, interests, and capabilities. This would need to
           include a budget request and possibly a proposal for sponsor funding;
       •   Use web conferencing for group meetings to plan and coordinate activities;
       •   Depending on the survey results, develop a proposed education program, both
           for law firm leaders and for those who would “do KM.” The program would
           likely consist of a combination of Webinars and live programs during Section
           meetings;
       •   Operate via TechCore ListServe, Wiki or other collaborative software a
           “space” for discussion, sharing drafts and building an on-line community for
           LPM members or as an attractant for prospective LPM members. This should
           be open to the public;
       •   Consider the need for and revenue and resource implications of fee-based
           offerings, for example, for certification in KM, a certificate program without
           testing, or an LPM University KM series, and
       •   Compile educational materials into LPM Magazine Articles, LPM Zine pieces,
           LPM Books, LPM Web Page materials and Web Conference Resources.
ABA-LPM Technology Core Group                                             Report to Council
                                                                          August 7, 2004

       Initiative on Managing Clients’ Electronic Records by Lawyers

                      2004-2005 Plan and Mission Statement

                       John Montaña & George Cunningham
             Co-Chairs, Electronic Records Management Working Group

This a mission statement and plan for the Law Practice Management Section’s initiative
on Managing Clients’ Electronic Records by lawyers at law firms and other legal
organization. The mission of this working group is to develop best practice guidelines,
proposed standards, and interpretations of the Code of Professional Conduct relating to the
preservation of client records. The initiative will also disseminate “eRecords”
management strategies and educational materials for the retention of clients’ electronic
records, digital materials prepared for clients, eMail correspondence with clients and other
client data exchanges that might create electronic records.

In the legal environment, as in other environments, electronic data and records have
become a pervasive part of the business environment. While lawyers must maintain their
electronic records in a manner appropriate for the conduct of business, they must also be
mindful of their ethical responsibilities to clients, litigants and courts. This means that
electronic records, like other records, must be preserved and managed in a manner that
protects the interests of all of these parties. Because of their position as trusted advisors,
lawyers must also be prepared to render advice on legal questions surrounding the client's
own electronic records when issues arise during the course of a representation. The
mission of this committee is to:

   •   Raise the awareness of lawyers concerning electronic records and the issues
       surrounding them, including both those maintained by lawyers and those
       maintained by their clients;
   •   Develop Best Practice Guidelines proposed Standards and ethical interpretations
       for the management of electronic records by lawyers and law firms; and
   •   Disseminate this information to lawyers, law firms, legal organizations and other
       interested parties through CLE programs, Web Seminars, LP Magazine, the Law
       Practice Today webzine and LPM Books.
ABA-LPM Technology Core Group                                            Report to Council
                                                                         August 7, 2004

             Initiative on Electronic Discovery in Everyday Cases
                     2004-2005 Plan and Mission Statement

                               Craig Ball & George Socha
                     Co-Chairs, Electronic Discovery Working Group

This is the mission statement and plan for the Law Practice Management Section’s
initiative on electronic discovery. This mission of this working group is to develop
practical standards and guidelines that can be used by attorneys and their support staff to
more effectively handle electronic discovery in their everyday cases. There's a real need
for guidance in this setting; not every case can sustain extensive expert involvement,
which may be necessary with enterprise systems in large scale, high stakes litigation.
Most of the ABA community works with cases which might involve a few computers, a
handful of eMail files or the need for a document sweep in a small company where the
document demand seeks electronic copies of file in their native (Word, Excel, PowerPoint,
Outlook, Lotus).

The first task is to provide guidance on individual systems and small servers to equip
lawyers with sound rules for chain of custody. We can recommend how attorneys or
paraprofessionals can do limited preliminary examination of systems without changing the
metadata or otherwise tainting the evidence. These guidelines should address issues
relating to the chain of custody and steps needed to preserve the original, electronic “best
evidence” and not compromise its authenticity. The next part should address, processing
and review, production and presentation of such information.

The standards and guidelines are intended for practical use by attorneys and their support
staff working in smaller legal organizations, public interest groups who deal with
individuals and small organizations. We will enlist volunteers from all the groups having
an interest in this area, including practitioners, their support staff, electronic discovery
service providers, electronic discovery software providers, and the courts. A core group
of Section actives will take primary responsibility for this initiative, using on-line
discussion lists and collaboration tools to:

       Develop of detailed guidelines and best practice on basic eDiscovery;
       Develop detailed standards that can applied in everyday cases;
       Evaluate the need, demand and requirements for certification processes for lawyers
       and support staff
       Prepare educational programs, such as conferences and webinars; and
       Develop of downloadable educational materials, such as articles, whitepapers,
       audio and visual presentations for on the TechCore web site as well as LP
       Magazine, Law Practice Today!
eCourts / eLawyering - 2004 Conference Schedule (Draft 10jk July 23, 2004)
Gray colored events denotes shared sessions with E-Lawyering

                                                 Day One: Monday, December 13, 2004
                                                                  Plenary Session
 8:30-8:45                            Welcome                                                    Jim McMillan & Jim Keane
 8:45-9:45                      eCourts Meets eLawyering                                 Hon. Larry Smuckler & Michael Arkfeld, Esq.

 9:45-                                                               Break
 10:00
                                    eCourt Track                                                       eLawyering Track
 10:00-       Implementing E-Filing; The Federal Gary Bockwig & Jim       Impact of eFiling on Lawyer         Jim Keane,
 11:00        Courts Experience                  Woodward                 Organizations                       Sue Larson,Esq., John Messing,
                                                                                                              Tobias Hartman, CEO – LexisNexis
                                                                                                              eFiling; Nicole Creed, eFile Manager,
                                                                                                              Bearing Point
 11:00-       A New E-Court: Pierce County,         Janine Cavalier &     Leveraging Imaging and PDF in       Guadalupe Sisneros*; (Denver);
 Noon         Washington                            Chris Lundquist       eFiling and eService, SoP, (Wade    John Colwell* San Diego Bankruptcy
                                                                          Bennett CSC, PowerBrief); CT        Lawyer
 Noon                                                                   Lunch on your own
 1:30-2:30    Court E-Filing / XML Initiatives      Tom Clark (WA) &       Impact of eFiling on the Legal     Marc Lauritsen*; Richard Granat*
                                                    Christopher Smith      Services Delivery Model            Karren Pope-Onuwekwu* (eLawyering
                                                    (CA)                                                      Task Force)
 2:30-3:30    New Software Tools for Creating       TBA – representatives   OnLine Dispute Resolution         Debbie Miller-Moore* -AAA, VP
              Your E-Court                          from Microsoft &                                          eCommerce; Hon. Arthur M. Ahalt*
                                                    Adobe Corporations                                        (Ret.), Virtual Courthouse LLP; Hon.
                                                                                                              Bruce Cooper *– Electronic
                                                                                                              Courthouse
 3:30-3:45                                                                    Break
                                                               Plenary Session
 3:45-4:45    Why Aren't the Lawyers and Courts Using E-Filing?         Session Leader: Scott Fairholm - Conference Presenters Panel
 5:00-6:00                                            Opening Reception
ABA-LPM Technology Core Group                                                                                       Report to Council
                                                                                                                       August 7, 2004

eCourts/eLawyering Conference
Day Two: Tuesday, December 14, 2004
7:00 – 8:30   Interest Group Breakfasts:     List of groups expressing intention to have meetings follows.
8:30-10:30    The Vendor Solutions Fire      Session Leader: Jim McMillan –
              hose!                          Presenters TBA
10:30-Noon    Vendor Exhibition              Exhibition Hall
Noon-2:00     Conference Lunch & Vendor      Exhibition Hall
              Exhibit
2:00-3:00     Developing Your Own            Hon. Jacqueline Silbermann        The Impact of       Susan Boswell*, Bankruptcy Practitioner, Tucson,
              Successful E-Filing Solution   and Jeffrey Carucci - NY          eFiling on          Quarles & Brady (Section Chair)
                                             Courts                            Bankruptcy          Barry Landers*, Clerk, US Bankruptcy Court,
                                                                               Practice            Southern District California;
                                                                                                   John Colwell*, San Diego consumer bankruptcy
                                                                                                   expert on Committee
3:00-3:45     Using the Department of        Session Leader: Jim McMillan      Training and        Sue Feldman, Cal AG Office Training Director;
              Justice GJXDM Standard in                                        Adaptation          WizNet – Bruno Wolfezdon Las Vegas Lawyer
              My Court?                                                        Strategies for
                                                                               Lawyers and
                                                                               Staff
3:45-4:00     Break
4:00-5:00     Tracking and Validating E-Documents           Ms. Julie Chodos*, Esq. USPS/Authentidate; John Messing, Law-on-Line*

5 :00-6 :00                                                       Vendor Reception? Exhibit Hall
Day Three: Wednesday, December 15, 2004
8:30-10:30   Privacy and Public Access - Session Leader:             Virtual Court Proceedings:    Jim Keane*, Tom O’Connor, and Guadalupe
             A 2004 Update               Sue Larson, Esq.            Resolution of an              Sisneros*
                                                                     eDiscovery Dispute with       Remote Attendees: Hon. Kay Allison, Circuit
                                                                     Web Conferencing and          Court for Baltimore City, MD,, Maryland Business
                                                                     VideoTeleconferencing         & Technology Case Management Program; Donald
                                                                                                   Rea* –Gordon Feinblatt (Baltimore) ; Ava-Lias
                                                                                                   Booker* – Saul Ewing (Baltimore)
10:30-10:45   Break
10:45-Noon    E-Scheduling - The Next Link in the Chain!                Session Leader: Jim McMillan
ABA-LPM Technology Core Group                                        Report to Council
                                                                      August 7, 2004

eCourts/eLawyering Conference
Interest Group Breakfasts (*interest confirmed)
ABA Business Law Section - CyberSpace Committee: Tom Smeddinghoff,, Vince Polly
ABA Business Law Section - Business Courts Committee, Tom Griffin;
ABA Litigation Section Committee on the Use of Technology
ABA Litigation Section Committee Committee on Computer Litigation*;
ABA-LPM eDiscovery Working Group (with Kroll OnTrack and Applied Discovery);
ABA-LPM eLawyering Task Force*
ABA Science & Technology Committee on eFiling*;
ABA High Tech Court Interest Group (To be formed with Whitlock Vendors
   (35 vendors supplying mock courtroom and conferencing equipment)
Bankruptcy Law Institute
Legal XML Member Section of OASIS, Technical Committees
       Court Filing
       Online Dispute Resolution
Legal Service Corporation LSXML Steering Committee
                  MDP/MJP COMMITTEE REPORT to COUNCIL
                       Annual Meeting, August 7, 2004
                              Atlanta, Georgia


The Council’s MDP/MJP Committee monitors and reports on significant developments inside
and outside ABA, and identifies opportunities for appropriate Council action. Members include
Committee Chair Ann L. MacNaughton, LPMS HOD Delegates Gary A. Munneke and Susan
Raridon Lambreth, and Donna Fraiche. This report describes:

•   Proposals from the ABA Standing Committee on Environmental Law, representing new
    opportunities for expanded LPMS leadership and visibility, membership outreach, and
    potential product sales;
•   “Sustainable Development” (SD) trends and developments generating law practice
    management impacts (management, finance, marketing, technology) from MDP, MJP, and
    other global trends we have been tracking for 15 years, which are now beginning to be felt
    across a broad range of substantive law practice fields;
•   Background and context for considering those proposals at the Section’s next quarterly
    business meeting in Colorado Springs.

         Proposals from ABA Standing Committee on Environmental Law (SCEL)

    1. Creation of a joint “Greenest Law Office” award, to be awarded jointly - perhaps at ABA
       Annual Meetings.
    2. Creation of a joint web-based platform with links, articles, and other resources relevant to
       lawyers grappling with practice management impacts of SD events.
    3. LPMS co-sponsorship of SCEL’s June 2004 annual conference in Baltimore, with a focus
       on practice management issues (management, finance, marketing, technology). The
       conference has the preliminary working title, “Corporate Governance and Sustainable
       Development: Implications for Environmental Law Reform.”
    4. Creation of a formal liaison relationship between LPMS and SCEL.


                 Sustainable Development” (SD) Trends and Developments:
                 Practical MDP/MJP Impacts on Law Practice Management

By appointment of ABA President Bob Hirshon, MDP/MJP Committee Chair Ann
MacNaughton served as an ABA Delegate to the 2002 World Summit on Sustainable
Development in Johannesburg, South Africa, a massive MJP/MDP conference with significant
implications for US-based law practice management (see attached report).

That event convened 50,000 judges, lawyers, business leaders, heads of state, scientists,
academics, and others from 190 countries for 2 weeks to develop a framework for achieving
MDP/MJP solutions to complex challenges with important legal aspects.
Collaboration across disciplines was emphasized, because of broad recognition that by its nature
sustainable development requires integrated solutions. See Ira Feldman and Ann L.
MacNaughton, A Model MDP—Environmental Practice, in Gary A. Munneke and Ann L.
MacNaughton, eds., MULTIDISCIPLINARY PRACTICE: STAYING COMPETITIVE AND ADAPTING TO
CHANGE (ABA LPMS 2001).

But “SD” is not limited to “environmental law practice.” In August 2003, ABA House of
Delegates adopted attached Resolution 108, which (among other things):

   •   Recognizes that good governance and the rule of law are essential to achieving
       sustainable development, and
   •   Resolves that ABA should consider and promote SD principles in the work of its entities,
       and encourage communication and cooperative action among them to better understand
       and promote the principles of sustainable development in relevant fields of law.

LPMS can provide valuable leadership and other resource. See Ann MacNaughton’s September
24, 2002 Preliminary Report to LPMS, at pages 3-5. For example, based on responses from
about 80 people at the annual Keystone Conference presented by the ABA Section on
Environment, Energy, and Resources (SEER, fka SONREEL), practice management issues –
including “learning how to form and participate in MDP teams – are considered of high practical
significance. MacNaughton & Whitby, REPORT OF SEER STAKEHOLDER ENGAGEMENT AND
CONSULTATION ON SUSTAINABLE DEVELOPMENT ISSUES (May 4, 2004). SEER—a Section that
(like LPMS) argued vigorously to the ABA House of Delegates in 2000 that lawyers must be
enabled to deliver services in cost-effective multi-disciplinary teams—has created a Section-
wide initiative to “weave SD into the fabric of the Section.”

But, again, SD has law practice management implications far outside the scope of environmental
law practice. MDP/MJP Committee Chair Ann MacNaughton is serving a 3-year term on the
ABA Standing Committee on Environmental Law (SCEL), with designated SD follow-up
responsibility. LPMS Section member Kinnan Goleman, who has served as SEER liaison to
SCEL for years, is beginning a term as SCEL Chair.

SCEL’s work is devoted to examination and analysis of emerging environmental law and policy
issues; development of ABA policies in the field; and communication about the myriad
environmental law activities taking place throughout the Association. Formal liaison
relationships presently include the Young Lawyers Division and the Administrative Law &
Regulatory Practice Section; the Dispute Resolution Section; the Environment, Energy, and
Resources Section; the General Practice, Solo and Small Firm Section; the Section on
International Law & Practice; the Litigation Section; the Public Utility, Communications, and
Transportation Law Section; the Real Property Probate and Trust Law Section; the State & Local
Government Section; the Taxation Section; and the Tort & Insurance Practice Section.

                                   Background and Context

From at least the early 1990’s, this Section has focused on emerging global trends with the
potential to impact US-based law practice management, and has urged US-based lawyers to
understand and respond effectively to them – with a focus on protecting effective client service
value and quality. MDP and MJP issues in global SD undertakings is creating present law
practice management impacts for a broad range of US-based lawyers, which present important
opportunities for LPMS leadership and outreach.

The following paragraphs provide MDP/MJP background and context for the current
“sustainable development” context.

LPMS International Task Force

The seeds of LPMS focus on emerging global trends with US-based law practice management
impacts go back at least to the early 1990’s, when the Section’s International Task Force
partnered with the Business Law Section and the Section on International Law & Practice:

   •   Published a multi-sector book, Silkenat & Aresty, THE ABA GUIDE TO INTERNATIONAL
       BUSINESS PRACTICE (1992, 2d. ed. 2000);
   •   Developed and presented a 1993-98 Annual Meeting program series, including a 1993
       Presidential Showcase program, focused on emerging commercial law practice trends;
   •   Presented a re-cap of the Annual Meeting programs on ABA Satellite video;
   •   Developed an interactive CD ROM for US-based business lawyers, to assist them in
       serving clients effectively while “law practice” concepts were beginning to undergo
       transformational change.

Mediation Task Force and White Paper.

In 1998, committee members led the Section’s Mediation Task Force, which produced a White
Paper high-lighting the impact of MDP/MJP trends on trial law as well as business law practice:

       Mediation is the tip of an iceberg, the U.S. legal profession’s first response to
       client demands for collaborative problem-solving, and a pointer to client-driven
       changes occurring in the delivery of legal services.

       Global commerce is not only expanding the scope of many lawyers’ professional
       practices, but also is changing the nature of law practice. Greater emphasis is
       placed upon preserving and enhancing important relationships. Greater effort is
       made to get value-added results from diversity and even from conflict. Lawyers
       often are asked to work in multidisciplinary teams. A team might be comprised of
       a tax lawyer, an SEC lawyer, an environmental lawyer, and an oil and gas lawyer
       working together. And that team also might include an economist, a landman, and
       an environmental engineer. It might also include a neutral party, or a team of
       neutral parties who also have multidisciplinary expertise.

Ann L. MacNaughton, Chair, MEDIATION TASK FORCE, MEDIATION: IMPLICATIONS              FOR
LAW PRACTICE MANAGEMENT AND THE ABA LPMS (January 28, 1998), at 1, 2.

ABA Debates on Multidisciplinary Practice.
From 1998-2000, committee members led LPMS efforts to aid ABA in formulating a
constructive approach to the challenges of evolving MDP practice:

    •   Sponsored a series of educational cross-disciplinary MDP Roundtables at 1998-2002
        ABA Annual and Mid-Year Meetings;
    •   Edited and co-authored the LPMS multi-author book, MULTIDISCIPLINARY PRACTICE:
        STAYING COMPETITIVE AND ADAPTING TO CHANGE (ABA 2001).

While these efforts achieved Section visibility and membership outreach objectives, they have
not yet achieved the goal of helping ABA take an effective leadership role on MDP issues. At the
risk of sidelining ABA institutionally, the ABA House of Delegates voted down the MDP
Commission’s July 2000 Report and Recommendation.

Since the need to partner in a cost-effective way with other professional services providers
creates significant management, marketing, and financial challenges in any event, numerous state
and local bar associations have proceeded to adopt (not necessarily uniform) MDP rules of their
own; others, such as California, are still evaluating various possible approaches to authorizing
MDP (see http://www.abanet.org/cpr/mdp_state_summ.html, last updated July 9, 2004;
http://www.abanet.org/cpr/mdp-state_action.html, last updated April 2, 2003.

Last summer, the MDP/MJP Committee collaborated with the E-Lawyering Committee to
develop the Section’s White Paper on The Model Definition of the Practice of Law (July 28,
2003), and continues to monitor and report to Council regarding MDP developments.

ABA Debates on Multijurisdictional Practice.

The Committee also led the Section’s successful efforts to aid ABA in formulating a constructive
approach to the challenges of evolving MDP practice:

•   Developed in cooperation with the Corporate Counsel Association (formerly known as the
    American Corporate Counsel Association, “ACCA”) of “A Common Sense Proposal for
    Multijurisdictional Practice” (the “Common Sense Proposal”), endorsed by LPMS Council
    in October 2001 and by numerous other ABA entities subsequently;
•   Convened a 2001-2002 series of broad-based and high-profile MJP Roundtables at ABA
    Annual and Mid-Year Meetings, quarterly ABA Section meetings, and state & local bar
    associations, to expand awareness and understanding about MJP and its LPM impacts;
•   Authored a series of related bar journal and law review publications, which together with the
    Common Sense Proposal and the MJP Roundtables helped to shape the conclusions and
    recommendations presented in the ABA Multijurisdictional Commission’s Final Report;
•   Led ABA House of Delegates floor politics in successful lobbying for approval of the MJP
    Commission’s Final Report at last year’s Annual Meeting.

Conclusion
The MDP/MJP Committee encourages LPMS Council Members to consider the SD-related
information provided in this Committee Report in the context of the Section’s long-standing
leadership role on MDP/MJP issues, in order to evaluate the broad relevance of SD events to US-
based law practice management and to the Section.

We will present these issues as action items at the Colorado Springs meeting. In the meantime,
any referenced report that is not attached will be provided on request.

We also expect to present a report in Colorado Springs regarding a U.S. District Court project to
liberalize MJP rules across the federal court system.

Respectfully submitted,

Ann L. MacNaughton, Chair
    WORLD SUMMIT ON SUSTAINABLE DEVELOPMENT
        & DURBAN ENVIROLAW CONFERENCE
     PRELIMINARY REPORT TO ABA LAW PRACTICE MANAGEMENT
                          SECTION
                      September 24, 2002
                                         Submitted by: Ann L. MacNaughton*



INRODUCTION

1. Held under the auspices of the United Nations, the 2002 World Summit on
   Sustainable Development (WSSD) was hosted In Johannesburg by the South African
   government during the period 26 August to 4 September 2002.

2. According to the United Nations Development Programme, over 50,000
   people attended it and related events. See http://www.undp.org/wssd/.
   Participants included representatives from over 190 governments, inter-
   governmental and non-governmental organizations (including the American
   Bar Association), the private sector, civil society, academia, and the scientific
   community. Today, just 20 days after the WSSD closed on September 4, only
   a preliminary overview of results is practicable.

3. Much WSSD information is still being compiled or reduced to writing; other
   information is still being developed. Numerous Internet sources of information, many
   of which are being continually updated as information becomes available, are
   incorporated in this report. If you are reading an electronic copy of this report, click
   on those addresses to locate that information. More complete Section reporting
   can be developed and delivered as additional information becomes available,
   and is compiled, reviewed, and analyzed.

4. The primary WSSD goal was to achieve agreement on a detailed plan for global
   economic development that will protect the environment while making progress
   against hunger and poverty. While much information is not yet available for review,
   this preliminary report attempts to set in the events and their results in context, with
   regard both to the official governmental negotiations and also the "parallel
   proceedings," with an emphasis on “Type 2" partnership agreements and other
   multi-stakeholder initiatives likely to be of particular interest to the Law Practice
   Management Section.


*
  ABA delegate and designated SEER representative, World Summit on Sustainable Development and Durban EnviroLaw
Conference. Ann is Vice President and General Counsel of Sustainable Resolutions, Inc., and senior editor of a new ABA book
first released at the World Summit: ENVIRONMENTAL DISPUTE RESOLUTION: AN ANTHOLOGY OF PRACTICAL SOLUTIONS.




                                                              1
2002 SUMMIT BACKGROUND AND CONTEXT

The 1972 U.N. Conference on the Human Environment (“Stockholm Conference”) laid
the foundation for international consensus that it is the responsibility of governments to
protect and improve the environment for both present and future generations.1 In 1983,
the UN General Assembly established the World Commission on Environment and
Development to establish a global agenda for recommended changes essential to
achieve sustainable development by the year 2000.2 Echoing the preamble of the
National Environmental Policy Act of 1969 (NEPA), the World Commission on
Environment and Development (Brundtland Commission) in 1987 defined “sustainable
development” as development “that meets the needs of the present generation
without compromising the ability of future generations to meet their own needs.”3

Agenda 21 is the global plan of action adopted by more than 178 Governments at the
1992 United Nations Conference on Environment and Development (UNCED), held in
Rio de Janeiro, Brazil, on-line at http://www.un.org/esa/sustdev/agenda21.htm. A significant
institutional outcome of UNCED was the establishment of the Commission on
Sustainable Development (CSD) in December 1992, to ensure effective follow-up of
UNCED. See http://www.johannesburgsummit.org/html/basic_info/csd.html. Ten years later,
the 2002 World Summit on Sustainable Development was convened in Johannesburg,
South Africa, to focus on “getting it done” through various implementation strategies.

THE OFFICIAL NEGOTIATIONS

Official Summit outcomes include two negotiated documents (“Type 1” agreements):
(1) The Johannesburg Declaration on Sustainable Development, on-line at:
http://www.johannesburgsummit.org/html/documents/summit_docs/1009wssd_pol_declaration.
doc; and
(2) The World Summit Plan of Implementation, on-line at:
http://www.johannesburgsummit.org/html/documents/summit_docs/plan_final1009.doc
(advance unedited text). See generally, http://www.johannesburgsummit.org/index.html;
http://www.iisd.ca/linkages/2002/wssd/.

Seven Partnership Plenaries. In May 2002, UN Secretary-General Kofi Annan proposed
the “WEHAB Initiative” for the WSSD, five key areas for focus and the development of
implementing partnering initiatives (see http://www.tomorrow-
web.com/2002/may/020517.html):
• Water—provide access to at least 1 billion people who lack clean drinking water and
  2 billion people who lack proper sanitation.
• Energy—provide access to more than 2 billion people who lack modern energy
  services; promote renewable energy; reduce over-consumption; and ratify the Kyoto
  Protocol to address climate change.
• Health—address the effects of toxic and hazardous materials; reduce air pollution;
  and lower the incidence of malaria and African guinea worm, linked with polluted
  water and poor sanitation.
• Agricultural productivity—work to reverse land degradation, which affects about two-
  thirds of the world's agricultural lands.




                                             2
• Biodiversity and ecosystem management—reverse processes that have destroyed
  half of the world's tropical rainforest; threaten 70 percent of its coral reefs; and are
  decimating the world's fisheries.
Relevant UN agencies prepared WEHAB Framework Papers in August 2002 to provide
focus and catalyze action (on-line at
http://www.johannesburgsummit.org/html/documents/wehab_papers.html).

Seven plenaries on the WEHAB issues, cross-cutting issues, and regional implementation
took place during the first week of the WSSD. Cross-cutting issues included finance and
trade, technology transfer, consumption and production patterns, education, science,
capacity building, and information. Partnership plenaries included presentations by
experts and commentary by panels of resource persons, followed by comments from
delegates. See http://www.johannesburgsummit.org; http://www.iisd.ca/linkages/2002/wssd.

Plenary statements were delivered by non-State entities from 29-30 August, including
approximately 43 UN agencies and intergovernmental bodies, 23 regional and other
governmental bodies, and 31 non-governmental organizations. From 2-4 September, 82
Heads of State and Government and other senior government officials addressed the
Plenary. Thirty Vice-Presidents and Deputy Prime Ministers and 74 ministers, royalty and
other senior officials also spoke. Text and video coverage of speakers organized by day
is available at http://www.un.org/events/wssd/statements.

Four Roundtables took place September 2-4 under the theme “Making It Happen.” The
U.N. Secretariat transmitted a discussion paper to guide deliberations among world
leaders (available at
http://www.johannesburgsummit.org/html/documents/summit_docs/3108_roundtables_discussio
n_paper.pdf), with five sets of questions regarding resource mobilization; institutional
coherence, and the integration of goals of economic growth, social development, and
environmental protection; regional and global cooperation on WEHAB issues;
integrating science in decision-making and access to critical technologies; and the
WSSD’s role in strengthening global solidarity. A report on the Roundtables was adopted
in the closing Plenary on 4 September. See 22 Earth Negotiations Bulletin, A Reporting
Service for Environment and Development Negotiations (Sept. 6, 2002), on-line at
www.iisd.ca/linkages/2002/wssd.

SIDE EVENTS

Side events took place in the margins of the official inter-governmental meetings,
organized for the purpose of sharing experiences and increasing opportunities for
dialogue among participants in the official meetings. An 8-page list of such meetings is
available on-line (last updated August 25) at:
http://www.johannesburgsummit.org/html/documents/summit_docs/2408_public_webtable.pdf;
http://www.undp.org/wssd.

PUBLIC PARTICIPATION

In advance of the Summit, the UN Commission on Sustainable Development
encouraged governments and civil society organizations to develop initiatives to




                                              3
address key sustainable development problems. For example, the U.S. Environmental
Protection Agency pursued partnerships regarding clean air, safe drinking water,
oceans protection, environmental governance, sound science, and children’s health.
See http://www.epa.gov/international/WSSD/type2.html.

The Summit thus generated not only Type 1 outcomes requiring global agreement (the
Johannesburg Declaration and the World Summit Plan of Implementation), but also
Type 2 partnerships, requiring only the commitment of the partners, and other initiatives
to achieve sustainable development objectives:
http://www.johannesburgsummit.org/html/sustainable_dev/partnership_initiatives.html (listing
Type 2 initiatives);
http://www.johannesburgsummit.org/html/documents/prep2final_papers/wssd_description_of_p
artnerships2.doc;
http://www.johannesburgsummit.org/html/documents/summit_docs/2908_partnershipsummary.
pdf (a 99-page “brief summary” of information available on hundreds of proposed
Partnership Initiatives known as of 16 August 2002 to the Secretariat for the World
Summit on Social Development).

Over 150 additional events–known as parallel events–took place in the Johannesburg
area at about the time of the Summit, convened and managed by organizations or
groups independent of the United Nations. Numerous initiatives were announced, and
others are still being developed. This preliminary report focuses on only a few of them;
information regarding many more of them may be found (and are continuing to
emerge) on-line at http://www.johannesburgsummit.org/html/basic_info/parallel_events.html.

LAW PRACTICE MANAGEMENT INITIATIVES

WSSD Type 2 partnerships and other initiatives may be global, regional, national, or
local in scope. They focus on collaboration among business leaders, academia, non-
governmental organizations (NGOs), and senior policy advisors to move constructively
from conflict to consensus on a variety of social, economic, and environmental issues
facing the world. Collaboration across disciplines is emphasized, because of broad
recognition that by its nature sustainable development requires integrated solutions.1 It
is too early to identify all initiatives that may hold relevance to LPMS, much less to
prioritize their significance. Nevertheless, these five deserve mention because of the
extent to which they could engage LPMS in thought leadership and technology transfer
activity internationally on finance, technology, management, and marketing initiatives
with lawyers with lawyers in both developing and developed countries who are
focused on these issues:

       (1) Global Judges Symposium (August 18-20)

           Sponsored by the United Nations Environment Programme (UNEP) and hosted
           by South Africa’s Chief Justice Arthur Chaskalson, the Global Judges
           Symposium engaged Chief Justices and other senior judges from more than

1
 See Ira Feldman and Ann L. MacNaughton, A Model MDP—Environmental Practice, in Gary A. Munneke and
Ann L. MacNaughton, MULTIDISCIPLINARY PRACTICE: STAYING COMPETITIVE AND ADAPTING TO CHANGE (ABA
LPMS 2001).




                                                  4
   100 countries to develop the Johannesburg Principles on the Role of Law and
   Sustainable Development. Presented to the Summit on August 29, the
   Johannesburg Principles call for (among other things):
   •   Improving judicial, legislative, and other capacity to carry out the
       promotion, implementation, development, and enforcement of
       environmental law on a well-informed basis, equipped with the necessary
       skills, information, and material;

   •   Improving the level of public participation in environmental decision-
       making; access to justice for the settlement of environmental disputes;
       defense and enforcement of environmental rights; and public access to
       relevant information;

   •   Strengthening sub-regional, regional, and global collaboration and
       information exchange;

   •   Strengthening environmental law education, including research and
       analysis;

   •   Achieving sustained improvement in compliance, enforcement, and
       development of environmental law,

   •   Strengthening the capacity of organizations and initiatives, including the
       media, that seek to enable the public to fully engage on a well-informed
       basis;

   •   Creating an Ad Hoc Committee of Judges, to be headed by the Chief
       Justice of South Africa, and representing geographical regions, legal
       systems, and international courts and tribunals, to review and publicize the
       emerging environmental jurisprudence and provide information about it;

   •   Supporting the Ad Hoc Committee through UNEP and its partner
       agencies, including civil society organizations; and

   •   Achieving priority financing through governments of the developed
       countries and the donor community, including international financial
       institutions and foundations.

(2) Durban Statement (EnviroLaw 2002 Recommendations)

   The August 22-25 Durban EnviroLaw Conference was convened by EnviroLaw
   Solutions, a unit of South Africa's largest law firm Edward, Nathan and
   Friedland, and supported by the US (State Department, EPA, DOJ, AID) and
   numerous other governments; the World Bank; the United Nations (UNEP,
   UNDP); many NGOs and international networks; and various international
   judicial and bar associations. It too produced a “Type 2” partnership initiative,
   which it presented to the Summit on August 29. The Durban Statement
   recommends:




                                     5
   •   Development and promotion of the use of indicators and an
       Environmental Law Enforcement Index, such as that recommended by
       the Government of the Netherlands and others, which can provide a
       component for further cooperation with partners to develop a future
       Sustainable Development Law Enforcement Index;

   •   Undertaking a focused capacity-building initiative in effective domestic
       development, enforcement, and monitoring of environmental law, and
       further sustainable development law, to train legal professionals,
       negotiators, investigators, compliance officials, mediators, legislators,
       executives, civil society including community based groups and
       academia, and the media (which can develop an initial focus in the
       Southern African Development Community), which also should focus on
       domestic implementation and enforcement of international agreements
       in the field of sustainable development, especially in connection with
       domestic laws that are transnational in nature;

   •   Undertaking projects to raise awareness of domestic, regional, and
       international environmental law and governance, and further advance
       international law in the field of sustainable development, with a particular
       focus on citizen access to justice; effective remedies and enforcement;
       citizen environmental, social, and economic rights; and sustainable
       development policy-making in the domestic context of developing
       countries; and involving the broader public, law firms, and other private
       sector actors (labor organizations; civil society, especially NGOs and
       academia; regional and international networks; and the media); and

   •   Undertaking a regional partnering initiative in southern Africa to
       encourage greater participation, implementation, and enforcement of
       domestic environmental law, including laws that implement international
       agreements, and to strengthen the progressive development and
       codification of environmental law and governance and other law in the
       field of sustainable development.

(3) International Sustainable Development Legal Partnership

   Montreal’s Centre for International Sustainable Development Law is leading
   this Type 2 initiative with three principal objectives:
   (1) Founding a user-friendly web-based legal resource center, involving
   developed and developing country jurists, to assess, promote, and
   implement the integration of international social, economic and
   environmental law;
   (2) Legal research and capacity building in international sustainable
   development law (ISDL) to assist governments, NGOs, judges and local
   communities effectively to address inter-linked environmental, economic and
   social challenges; and




                                        6
(3) A series of policy and educational publications on ISDL, to be made
widely accessible to scholars, decision-makers and civil society, particularly in
developing countries.




                                  7
      (4) IUCN Environmental Law Programme Capacity Building Initiative

          The goal of this project is for every country to have the capacity to take part
          in the international policy debate, to implement what is agreed through
          coordinated policies, laws and institutions, and to ensure effective
          compliance with environmental laws. Key mechanisms include academic
          education, practical training, expert forums, internationals experience,
          publications, technical assistance and information.

      (5) ECOLEX –Global Partnership for Information on Environmental Law

          A second IUCN-initiated Type 2 partnership focuses on increasing access to
          authoritative information on environmental law by establishing a single
          gateway on the Internet (ECOLEX) and publishing a range of products on
          specific topics. The effort will build on the legal information holdings of UNEP,
          FAO and IUCN. The first information to appear on ECOLEX will be treaties,
          national legislation, legal literature, and court decisions.

WATER DOME
Sponsored by the African Water Task Force, with the International Water Management
Institute and numerous additional partners including the European Commission, six full
days of water-related events engaged an estimated 12-15 thousand Summit
participants (including more than 100 ministers and many heads of state and
international agencies) across all stakeholder groups for focused interdisciplinary
attention to six identified priorities:
(1) Regional integration and finance;
(2) Food security;
(3) The nature of water as a “public good” and also as a gift from nature, an
inextricable element of our delicate ecosystems, and a heritage that must always be
passed on to the next generation undamaged;
(4) Energy and climate, including the need for water management strategies that can
deal with increasing climate variations and impending climate change;
(5) Health and poverty; and
(6) the requirement for global approaches to questions of how to deal with trade in
water and water service; the defining of acceptable conditions for private sector
involvement in water delivery; corruption; and the question of whether or not water -
like for example health, agriculture and telecommunications - requires a formal
intergovernmental organization.
Significant outcomes included, among others, the new Incomaputo Regional Water
Sharing Agreement between South Africa, Swaziland, and Mozambique, signed into
effect on August 29 at the Water Dome, and the EU-Africa Water Initiative for
technology sharing and financial support, launched at the Water Dome on September
3, 2002. More information is at www.waterdome.net.4

FIVE U.S. GOVERNMENT PARTNERSHIP INITIATIVES

The U.S. Government announced these partnership initiatives on August 29:




                                            8
       (1) "Water for the Poor Initiative" expands access to clean water and sanitation
       services, improves watershed management, and increases the efficiency of
       water in industrial and agricultural activities, to help achieve the UN Millennium
       Declaration Goal of cutting in half by 2015 the proportion of people who lack
       safe drinking water. Under this initiative, the United States will invest $970 million
       over three years, which can leverage private resources to generate more than
       $1.6 billion for water-related activities globally.

       (2) "Clean Energy Initiative" seeks to provide millions of people with new access
       to energy services, increase the efficiency of energy use, and significantly
       reduce readily preventable deaths and respiratory illnesses associated with
       motor vehicle and indoor air pollution. Under this initiative, the U.S. proposes
       investment of up to $43 million in 2003 to leverage about $400 million in
       investments from the United States and other governments, the private sector,
       and development organizations.

       (3) "Initiative to Cut Hunger in Africa" to spur technology sharing for small-holders,
       strengthen agricultural policy development, fund higher education and regional
       technology collaboration, and expand resources for local infrastructure in
       transportation, marketing, and communications. The United States will invest $90
       million in 2003, including $53 million to harness science and technology for
       African farmers and $37 million to unleash the power of markets for smallholder
       agriculture.

       (4) "Congo Basin Forest Partnership" to promote economic development,
       alleviate poverty, improve governance, and conserve natural resources in six
       Central African countries --Cameroon, Central African Republic, Democratic
       Republic of Congo, Equatorial Guinea, Gabon, and Republic of Congo. The
       United States intends to invest up to $53 million over the next 4 years to support
       sustainable forest management and a network of national parks and protected
       areas and to assist local communities, matched by contributions from
       international environmental organizations, host governments, G-8 nations, the
       European Union, and the private sector.

       (5) Health Initiative. The U.S. Government reaffirmed its commitment to help fight
       HIV/AIDS, tuberculosis, and malaria through financial and technical support for
       the Global Fund and the International Mother and Child HIV Prevention Initiative
       to help achieve the Millennium Development Goal of halting by 2015 the spread
       of HIV/AIDS and the scourge of malaria and other communicable diseases. Its
       bilateral programs and research will contribute to that effort. In addition, the
       Administration has requested $1.2 billion in 2003 to combat these diseases.

GLOBAL NGO FORUM

A Civil Society Global Forum, held from 19 August to 4 September at the Expo Centre
(NASREC) located to the south of Johannesburg, was open to representatives of all of
the Major Groups identified in Agenda 21: (1) women; (2) children and youth; (3)
indigenous people; (4) non-governmental organizations (“NGOs”); (5) farmers; (6) local
authorities; (7) workers and unions; (8) business and industry; and (9) the scientific and




                                              9
technological community. On-line links to these major groups, and many if not all of
their Summit activities and results, are on-line at http://www.un.org/esa/sustdev/mlinks.htm.

BUSINESS FORUM

Business Action for Sustainable Development (BASD) was a comprehensive network of
business organizations, a joint initiative at the Summit of the International Chamber of
Commerce (ICC) http://www.iccwbo.org/sdcharter/corp_init/icc-unep/index.asp and the
World Business Council on Sustainable Development http://www.wbcsd.ch/. See
generally http://www.basd-action.net. Also see http://www.basd-
action.net/resources/links.shtml (links to relevant resources; http://www.basd-
action.net/initiatives/index.php (links to business partnership initiatives); http://www.basd-
action.net/activities/business.shtml (links to “Lekgotla: Business Day” speeches, press
releases, and articles; and http://www.basd-
action.net/docs/releases/20020904_convers.shtml (with more links, and summarizing the
business conclusion to the WSSD: in the words of Elvis Presley, “a little less conversation,
and little more action”).

The Global Reporting Initiative (“GRI”) was established in late 1997 to develop globally
applicable guidelines for reporting on the economic, environmental, and social
performance by organizations. Convened by the Coalition for Environmentally
Responsible Economies in partnership with the United Nations Environment Programme,
it incorporates the active participation of corporations, NGOs, accountancy
organizations, business associations, and other stakeholders from around the world. At
WSSD, it introduced its 2002 Sustainability Reporting Guideline at the WSSD. See
generally, http://www.globalreporting.org/AboutGRI/Overview.htm.

IMPLEMENTATION CONFERENCE
The Implementation Conference focused on development of "type 2" partnership
initiatives to further the implementation of international agreements in four issue areas:
energy, freshwater, food security, and health. Impacting policy-making was not the
primary concern of the participants, who met to agree action to implement existing
(and emerging) policy agreements. Its Initial Report (27 August 2002) is on-line at
http://www.earthsummit2002.org/ic/.


Respectfully submitted,
Ann L. MacNaughton
1   See generally Lynton K. Caldwell, International Environmental Policy (3d ed. 1996) at 48-78.

2 World Commission on Environment and Development (Brundtland Commission), OUR COMMON FUTURE
(1987) at ix-xv.

3 Dr. Lynton Caldwell, a principal architect of the U.S. National Environmental Policy Act of 1969, has

defined “sustainable development” as “the meeting of today’s true needs and opportunities without
jeopardizing the integrity of the planetary life-support base—the environment—and diminishing its ability to
provide for needs, opportunities, and quality of life in the future.” Caldwell, supra note 1, at 243. To be
sustainable, development must possess both economic and ecologic sustainability, a concept which is
viewed quite differently by industrialists, economists, planners, and environmental and ecological scientists
and has generated a large literature. Id. at 275 n. 71 (citing selected examples). See generally, Ann L.
MacNaughton and Jay G. Martin, Environmental Conflict Management and Dispute Resolution, in Ann L.




                                                        10
MacNaughton and Jay G. Martin, eds., ENVIRONMENTAL DISPUTE RESOLUTION: AN ANTHOLOGY OF PRACTICAL SOLUTIONS
(ABA 2002), notes 1-15 and accompanying text.
4   The EU also announced good governance, energy, and health initiatives. See
http://europa.eu.int/comm/environment/wssd/eu_preparations_en.html.




                                                         11
                             AMERICAN BAR ASSOCIATION
                         ADOPTED BY THE HOUSE OF DELEGATES
                                  August 11-12, 2003


RESOLVED, That the American Bar Association recognizes that good governance and the rule
of law are essential to achieving sustainable development.

FURTHER RESOLVED, That the American Bar Association reaffirms its 1991 commitment to
sustainable development, and adopts the internationally accepted concept of sustainable
development, as recognized at the United Nations Conference on Environment and Development
in 1992 and subsequent international conferences: simultaneous achievement of environmental
protection, economic development, social development, and peace, for present and future
generations.

FURTHER RESOLVED, That the American Bar Association encourages governments,
including U.S. federal, state, local, tribal, and territorial bodies, as well as businesses,
nongovernmental organizations, and other entities, to promote sustainable development,
including by adopting and implementing appropriate measures with respect to the ir own facilities
and activities.

FURTHER RESOLVED, That the American Bar Association urges the U.S. government to meet
the targets and timetables for sustainable development that are contained in the Plan of
Implementation adopted at the World Summit on Sustainable Development in Johannesburg,
South Africa, in September 2002, that are applicable to the United States and to which the United
States agreed.

FURTHER RESOLVED, That the American Bar Association should enter into appropriate
partnerships with governments, including U.S. federal, state, local, tribal, and territorial bodies,
as well as with businesses, nongovernmental organizations, and other entities, to help foster
sustainable development and to help achieve the targets and timetables that are contained in the
Johannesburg Plan of Implementation, to which the United States agreed.

FURTHER RESOLVED, That the American Bar Association should consider and promote
sustainable development principles in the work of its entities, and encourage communication
and cooperative action among its entities to better understand and promote the principles of
sustainable development in relevant fields of law.

FURTHER RESOLVED, That the American Bar Association urges international, state, local,
tribal, and territorial bar associations to adopt similar resolutions.
                                            REPORT

        At the 1992 U.N. Conference on Environment and Development in Rio de Janeiro
(UNCED, or Earth Summit), the United States and other countries adopted a global plan of
action for sustainable development (Agenda 21) and a set of 27 principles to guide that effort
(Rio Declaration). Sustainable development is “socially responsible economic development”
that protects “the resource base and the environment for the benefit of future generations.”
UNCED, Agenda 21, ¶ 8.7. Peace provides an indispensable foundation for sustainable
development. UNCED, Rio Declaration, Principles 24 & 25. Subsequent international
conferences, including the 2002 World Summit on Sustainable Development in Johannesburg,
South Africa, reaffirmed this concept of sustainable development. These conferences have built
on the 1987 Brundtland Commission definition of sustainable development as “development that
meets the needs of the present without compromising the ability of future generations to meet
their own needs."

         Sustainable development is intended to respond to the long-standing tension among
economic, environmental, and social goals and objectives, including the related and growing
problems of environmental degradation and the gap between rich and poor. It is not about the
environment alone; it is about the relationship between the environment and other human goals.
It is not about the environment vs. development; it is about the environment and development.

        Laws and effective governance are central to sustainable development. UNCED, Agenda
21, ch. 8. Because governance is based largely on law, sustainable development raises profound
challenges–and opportunities–for the rule of law and for lawyers. Underlying all sustainable
development efforts is the need for capacity building and infrastructure to support effective
stakeholder engagement, issue identification, emotional and values conflict management, and the
development of sustainable solutions to complex economic, social and environmental challenges.
Reflecting these realities, some have posited that all law should have sustainable development
principles integrated into it.

        But sustainable development is not merely another way of talking about environmental
regulation; it is about all laws that affect the environment and social well-being. Many of the
key principles underlying sustainable development, as articulated at UNCED, have a significant
legal component. Applying sustainable development from a legal perspective means
understanding, developing and applying legal mechanisms that are relevant to the complex
relationships among economic, social and environmental priorities. This suggests a cross-
functional approach, at international, nationa l and local levels, that integrates a variety of legal
specialties, including environmental, labor, property, tax, corporate, finance, international trade
and risk management.

        There will always be tension between industrial development and protection of
ecological and social environments. Thus, we need suitable systems and techniques for engaging
diverse stakeholders as well as managing and resolving the inevitable conflicts and disputes in
order to achieve sustainable development objectives. Sustainability thinking is especially useful
as a framework for addressing complex environment-development matters, usually involving
multiple stakeholder interests, and often with significant domestic and international components.
        The importance of law and good governance to sustainable development was
emphasized in August 2002 by ABA President Robert E. Hirshon when he wrote to Secretary of
State Colin L. Powell concerning the then-upcoming World Summit on Sustainable
Development (WSSD) in Johannesburg, South Africa. Hirshon wrote that “we strongly
encourage the United States to promote inclusion in the Plan of Implementation and the Political
Declaration for the WSSD of both a commitment by all governments to pursue domestic good
governance and application of the rule of law at home, and a commitment by the international
community to provide the financial, technical, and other assistance needed to enable these
national efforts.” In his reply, Secretary Powell said that the United States would support those
commitments, and expressed his appreciation for the ABA’s efforts to foster “good governance
and the rule of law around the world.”

       The important role of law and legal organizations in fostering sustainable development is
also underscored by a series of me etings and conferences that occurred in South Africa before
the WSSD. These include a global judges symposium on sustainable development, an
environmental law conference sponsored by the IUCN (World Conservation Union)
Environmental Law Commission, and an environmental law conference sponsored by South
Africa’s largest law firm and various international judicial and bar associations.

World Summit on Sustainable Development

        The 2002 World Summit on Sustainable Development focused on implementation of the
Earth Summit agreements. One set of critical outcomes, agreed to by the United States and
other countries after lengthy negotiations, are the targets and timetables contained in the
Johannesburg Plan of Implementation. Targets and timetables are commitments to achieve
specific results by stated dates. Some of these targets and timetables reaffirm commitments that
were previously agreed to in the U.N. General Assembly’s “Millennium Declaration” in 2000.
These targets and timetables, to which the United States agreed, are set forth in the Appendix.

         Another set of critical outcomes are commitments, made at the Summit and afterwards,
by governmental and nongovernmental entities to work toward sustainable development in
partnership with others. The United States specifically encouraged such partnerships in the run-
up to the World Summit, and they are repeatedly endorsed in the Plan of Implementation. See,
e.g., ¶ 3. These so-called “Type II” outcomes or partnerships derive from the idea that
governments cannot, and should not try to, accomplish sustainable development alone. While
some Type II partnerships were announced in Johannesburg, there will continue to be
opportunities for the creation of new partnerships. These partnerships may involve the ABA.

ABA at the 2002 World Summit

        In May 2002, Professor Robert E. Lutz, 2001-2002 Chair of the ABA Section of
International Law & Practice (SILP), petitioned ABA President Robert Hirshon for permission to
form an ABA Delegation to participate in the World Summit. Since there had been an ABA
Delegation to the 1992 UNCED or Earth Summit, it was felt that the ABA could achieve a
number of Association and Section objectives by organizing a delegation of informed persons
who were actively involved in a variety of ABA activities related to sustainable development.
Receiving the support of the ABA President, Professor Lutz organized a delegation of persons
who are leaders in some ABA activity related to the theme and work of the World Summit.

       Through programs it held and the activities of its members, the delegation helped the
ABA gain significant visibility and credibility among non-U.S. international lawyers and among
environmental and other NGOs based outside the United States. The delegation’s report to the
ABA recommended that the ABA play a significant role in fostering sustainable development
through a variety of committees and sections at both the domestic and international level.

Continuing ABA Commitment

         The ABA has a history of supporting the principles of sustainable development. In
1991, the House of Delegates adopted a resolution urging “the United Nations and each nation of
the world” to “develop and foster policies and long-term strategic plans for sustainable
development” and “encouraging the betterment of human life through conservation and efficient
use of natural resources.” In 1992, the ABA helped the previous Bush Administration prepare
for the Earth Summit and participated in the Earth Summit by sending representatives to non-
governmental organization (NGO) sessions and providing a representative to serve on the official
delegation sponsored by the United States government.

        The House of Delegates has already adopted at least two other resolutions that are
consistent with the basic principles of sustainable development. The 1999 House of Delegates
resolution on legislation concerning cleanup of brownfields and the 2001 resolution on
environmental management systems recognize the important role law and policy can play in
simultaneously furthering economic, environmental, and social objectives.

        More generally, promoting the rule of law internationally is a priority for the ABA. This
work takes a variety of forms. For example, the ABA’s regional councils for internatio nal legal
technical assistance were created for the purpose of initiating, implementing, and overseeing
ABA technical legal assistance projects in their respective areas of the world. These councils
include the Asia Law Initiative, the Central European and Eurasia Law Initiative (CEELI), the
Africa Law Initiative, and the Latin American Legal Initiative. Similar work has been conducted
for years by the Section of Environment, Energy, and Resources and the Section of International
Law and Practice. These are examples of activities that could form the basis for the Type II
partnerships described above.

Importance of Resolution to Sponsoring Committees/Sections

         Standing Committee on Environmental Law. Policy conferences conducted by the
Standing Committee in 1992 (also serving as an official U.S. government hearing for U.S.
preparation for the Earth Summit), in 1994 (addressing Agenda 21) and in 1996 (examining the
role of the private sector in sustainable development) attest to the continuing high degree of
interest in sustainable development concerns within the legal community. A 1997 ABA
hemispheric conference on sustainable development in the Americas cosponsored by four ABA
entities and the Inter-American Bar Association similarly drew widespread attendance by
lawyers and participation by leaders in business, government and NGOs throughout the
Americas. The Standing Committee also supported a 1997 symposium at Widener University
Law School on the role of law in defining sustainable development. The Committee organized
and held a conference, “Combating Terrorism in the Environmental Trenches,” portions of which
were published in 2003 in the Widener Law Symposium Journal, and convened a colloquium in
2000 addressing the environmental consequences of armed conflict. As Secretary of State Collin
Powell and others have pointed out, because terrorism undermines peace and security, and armed
conflict inevitably damages natural resources, such that attention to these matters becomes an
essential element of fostering sustainable development.

         Section of Environment, Energy, and Resources. Because sustainable development is not
a discrete category, like air quality or endangered species, the overarching, cross-cutting scope of
the sustainability concept means that it is likely many Committees within the Section will
increasingly address their specialized areas of interest within a sustainability framework. There
are at least 16 Section Committees for which there is a direct subject matter analogue to a
chapter in Stumbling Toward Sustainability, a detailed assessment of U.S. sustainable
development efforts published in 2002. In 1995, moreover, the Section expanded the scope of
its climate change committee to specifically include sustainable development. The Section
cosponsored the 1997 Widener Symposium on the role of law and sustainable development.

        Section of International Law and Practice. SILP's activities long have manifested a deep
commitment to promotion of sustainable development. The Section continues to pursue rule of
law training and technical assistance projects around the world. Its writings and programs focus
on improvement and understanding of myriad aspects of international law and policy relevant
and necessary to sustainable developme nt, from investment, finance and trade to human rights,
the environment and human health. SILP considers promotion of sustainable development an
essential mission of the ABA and, accordingly, seeks to work creatively and collaboratively with
other ABA entities to pursue this goal and to enable ABA members to play active and effective
roles. The Section's founding of CEELI and establishment of the International Legal Resource
Center in collaboration with the United Nations Development Program reflect this commitment.
SILP was pleased to initiate and coordinate ABA's participation in WSSD and efforts to work
with the United States government before and since to promote and enable good governance and
the rule of law. An express affirmation of ABA's ongoing commitment to the principle of
sustainable development would facilitate SILP's ongoing efforts and help guide the design and
implementation of the numerous relevant activities of the Section and the ABA as a whole.

Conclusion

        This resolution is timely because it comes shortly after the September 2002 World
Summit on Sustainable Development, in which the United States and other countries reaffirmed
their commitment to sustainable development. This resolution is necessary because continued
unsustainable development is not a prudent option. This resolution is important to the ABA
because it positions the ABA to play a significant role in the United States and internationally in
supporting efforts to achieve sustainable development, including through partnerships with
governments and other entities.
              Respectfully submitted,

              Meghan H. Magruder, Chair
              Standing Committee on Environmental Law

              Eugene E. Smary, Chair
              Section of Environment, Energy & Resources

              Mary Massaron Ross, Chair
              Sectio n of State and Local Government Law



August 2003




                -5-
                                APPENDIX
                         TARGETS AND TIMETABLES
          CONTAINED IN THE JOHANNESBURG PLAN OF IMPLEMENTATION


        The Plan of Implementation, adopted by the World Summit on Sustainable Development
in Johannesburg, South Africa in September 2002, and agreed to by the United States, contains
the following targets and timetables:

        • to halve by 2015, “the proportion of the world’s people whose income is less than one
dollar a day” (¶ 7(a)).
        • to halve by 2015 “the “proportion of people who suffer from hunger” (¶ 7(a).
        • to halve by 2015 “the proportion of people who do not have access to basic sanitation”
(¶ 7(a)).
        • to halve by 2015 “the proportion of people who are unable to reach or to afford safe
drinking water” (¶ 8).
        • to achieve “a significant improvement in the lives of at least 100 million slum dwellers”
by 2020 (¶ 11).
        • to encourage “and promote the development of a 10-year framework” of programs to
accelerate the shift toward sustainable consumption and production” (¶ 15).
        • to aim to ensure, by 2020, “that chemicals are used and produced in ways that lead to
the minimization of significant adverse effects on human health and the environment” (¶ 23).
        • to promote ratification of the Rotterdam Convention on Prior Informed Consent
Procedures for Certain Hazardous Chemicals and Pesticides in International Trade “so that it can
enter into force by 2003” (¶ 23(a)).
        • to promote ratification of the Stockholm Convention on Persistent Organic Pollutants
“so that it can enter into force by 2004” (¶ 23(a)).
        • to encourage “countries to implement the new globally harmonized system for the
classification and labeling of chemicals as soon as possible with a view to having the system
fully operationa l by 2008” (¶ 23(c)).
        • to develop “integrated water resources management and water efficiency plans by
2005" (¶ 26).
        • to encourage “application by 2010 of the ecosystem approach” to oceans and seas. (¶
30(d)).
        • to restore depleted fish stocks “on an urgent basis and where possible not later than
2015" (¶ 31(a)).
        • to develop and implement national or regional plans to put into effect by 2005 the
International Plan of Action for Management of Fishing Capacity (¶ 31(d)).
        • to develop and implement national or regional plans to put into effect by 2004 the
International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported, and
Unregulated Fishing (¶ 31(d)).
        • to make “every effort to achieve substantial progress by the next Global Plan of Action
conference in 2006 to protect the marine environment from land-based activities” (¶ 33(d)).
        • to establish “by 2004 a regular process under the United Nations for global reporting
and assessment of the state of the marine environment” (¶ 36(b)).
        • to facilitate “implementation of the Montreal Protocol on Substances that Deplete the
Ozone Layer by ensuring adequate replenishment of its fund by 2003/2005” (¶ 39(b)).
        • to accelerate “implementation of proposals for action of the Intergovernmental Panel on
Forests/Intergovernmental Forum on Forests” to “contribute to an assessment of progress in
2005” (¶ 45(g)).
        • to improve developing country access “to affordable, accessible, cost-effective and
environmentally sound alternatives to ozone-depleting substances by 2010" (¶ 39(d)).
        • to promote “and develop partnerships to enhance health education with the objective of
achieving improved health literacy on a global basis by 2010” (¶ 54(e)).
        • to reduce “maternal mortality by three quarters” of its 2000 rate by 2015, and to reduce
“under-five child mortality by two thirds” of its 2000 rate by 2015 (¶ 54(f)).
        • to reduce by 25% by 2005 in the most affected countries, and by 2010 globally, the
prevalence of HIV “among young men and women aged 15 to 24” (¶ 55).
        • to “reduce, prevent and control waste and pollution and their health related impacts” on
small island developing states by taking specified actions by 2004 (¶ 58(e)).
        • to develop “community-based initiatives for sustainable tourism” on small island
developing states by 2004 (¶ 58(g)).
        • to strengthen and support ongoing and new efforts “on energy supply and energy
services” on small island developing states by 2004 (¶ 59(a)).
        • to undertake “a full and comprehensive review of the implementation of the Barbados
Programme of Action for the Sustainable Development of Small Island Developing States in
2004" (¶ 61).
        • to support Africa’s efforts to secure access to energy “for at least 35 per cent of the
African population within 20 years” (¶ 62(i)).
        • that African countries should be “in the process of developing and implementing food
security strategies” by 2005 (¶ 67(a)).
        • to ensure that by 2015 “children everywhere, boys and girls alike, will be able to
complete a full course of primary schooling and that girls and boys will have equal access to all
levels of education” (¶ 116(a)).
        • to “eliminate gender disparity in primary and secondary education by 2005" and “at all
levels of education by 2015" (¶ 120).
        • that nations should take “immediate steps to make progress in the formulation and
elaboration of national strategies for sustainable development and begin their implementation by
2005” (¶ 162(b)).




                                               -2-
                              GENERAL INFORMATION FORM


Submitting Entities: Standing Committee on Environmental Law; Section of Environment,
Energy, & Resources; Section of State and Local Government Law

Submitted by: Meghan H., Magruder, Chair; Eugene E. Smary, Chair; Mary Massaron Ross,
Chair, respectively

1. Summary of Recommendation
Recognizes the role of sustainable development in promoting the ABA commitment to good
governance and the rule of law; adopts the internationally accepted definition of sustainable
development; encourages governments, businesses and other entities to promote sustainable
development as well as to adopt and implement legal and policy incentives to support and
encourage sustainable development; urges the U.S. government to meet, and to help other
countries meet, agreed-on targets and timetables contained within the Plan of Implementation
adopted at the 2002 World Summit on Sustainable Development; resolves that the ABA enter
into appropriate partnerships to help foster sustainable development and that ABA consider and
promote sustainable development principles in its wo rk and encourage communication and
cooperation in these endeavors; and urges bar associations to adopt similar resolutions.

2. Approval by Submitting Entities
Approved by the Standing Committee on Environmental Law, by the Section of Environment,
Energy, and Resources, and by the Section of State and Local Government Law in May 2003.
Approval by the Section of International Law and Practice is pending at time of submission.

3. Has this or a similar recommendation been submitted to the House or Board previously?
In 1991, the ABA adopted a policy resolution urging the United Nations and nations of the world
to develop and foster policies and strategic plans for sustainable development. In 1997, a policy
resolution cosponsored by the Standing Committee on Environmental Law, Section of
Environment, Energy, and Resources and Section of Tort Trial and Insurance Practice endorsed
the sixteen belief statements and ten goals of the President’s Council on Sustainable
Development. The proposal was withdrawn before Ho use consideration in an effort to consider
suggestions made by other ABA Sections.

4. What existing Association policies are relevant to this recommendation and how
    would they be affected by its adoption?
In 1999 and in 2001 the ABA adopted resolutions consistent with the basic principles of
sustainable development, supporting appropriate brownfields redevelopment and voluntary
environmental management systems, respectively. This resolution continues the underlying
emphasis on sustainable development principles and as a result also reinforces these resolutions.

5. What urgency exists which requires action at this meeting of the House?
The World Summit on Sustainable Development convened in September 2002. The United
States took part in the Summit and signed on to the targets and timetables contained in the
resultant Plan of Implementation. Work already is under way within the U.S. and elsewhere to
take steps to achieve the targets and timetables and to help other nations in this endeavor.
Through this policy resolution, the American Bar Association will play an important role for the
legal community – in a timely manner – to clearly encourage, support, and help foster
achievement in this arena.

6. Status of Legislation
There is no pending legisla tion dealing specifically with sustainable development, but various
pieces of legislation will relate to the goals underlying sustainable development.

7. Cost to the Association
This resolution does not impose costs on the Association, as there are many steps that ABA
entities can choose to take to promote sustainable development without incurring costs.

8. Disclosure of Interest (If applicable)
The cosponsoring entities hold an active interest in and engage in activities that will foster
sustainable deve lopment generally, such as CLE programming, provision of ABA activities
information to governments, NGOs and others, and development of policy resolutions. No
individual associated with this resolution will benefit personally from adoption of this resolution.

9. Referrals
As it was developing, this Report with Recommendations was circulated to representatives of the
ABA Standing Committee on Environmental Law; Section of International Law & Practice; and
Section of Environment, Energy, & Resources as well as to the ABA Sections of Administrative
Law & Regulatory Practice; Business Law; Public Utility, Communications & Transportation
Law; Real Property, Probate & Trust Law; State and Local Government Law; and Taxation.
Circulation to all ABA Sections is being made following this submission.

10. Contact Person (Prior to the meeting)
Elissa C. Lichtenstein
American Bar Association
740 15th Street, NW
Washington, DC 20005
202-662-1695

11. Contact Person (Who will present the report to the House)
Meghan H. Magruder
Hale & Dorr LLP
1455 Pennsylvania Avenue, NW, Suite 1000
Washington, DC 20005
202-942-8418
                    Law Practice Management Section Delegates Report
                      Gary Munneke and Susan Raridon Lambreth
                                  2004 Annual Meeting

As your Delegates to the ABA House of Delegates, Gary Munneke and Susan Raridon Lambeth
have reviewed the agenda for the upcoming meeting of the House, which will be held in Atlanta,
GA, August 9-10. We identified six resolutions that we believe may impact the Law Practice
Management Section. We have summarized the proposed resolutions below, but attach the text
of the two of the resolutions below for your information. We also include a document describing
the complete House agenda, and for anyone who might be interested, a link to all House Reports
on the ABA website at http://www.abanet.org/leadership/home.html. We will report on the
resolutions below at the LPM Council Meeting on Saturday, August 7, and the Council may
direct us to support or oppose any resolution coming before the House.

       11-5 International Law Associates—This resolution permits International Associate
       members to serve on the Council of the International Law Section. The Section
       Delegates believe it is consistent with the LPMS effort to expand the opportunities for
       leadership in the ABA for associate members, but we seek Council confirmation.
       11-7 Standing Committee on Professionalism—This resolution expands the jurisdiction
       of the Standing Committee to include advertising and competence, both of which have
       some connection with the jurisdiction of the Law Practice Management Section. The
       jurisdictional expansion was the product of sunsetting the Commission on Advertising
       and the Standing Committee on Competence.
       103A Litigation Section Resolution on Data Collection—This resolution urges greater
       use of data collection in order to make rational decisions about proposed changes in the
       justice system. The LPM Section Council voted to co-sponsor this resolution earlier in
       the summer, and at this point the resolution does not appear to be controversial.
       108 Standing Committee on Client Protection resolution on insurance disclosure—The
       LPM Council discussed this issue during its Fall and Meetings, but took no action.
       Although the current version of the resolution has been watered down in response to
       criticism, there remains some dissent on this topic, lead by the Standing Committee on
       Lawyers Professional Liability, a group dominated by the malpractice defense bar and
       LPL insurers. Their memo, along with the Client Protection Committee’s resolution, are
       attached. The Delegates will seek further guidance from Council in August.
       112 Substance Abuse—This resolution seeks to The Lawyer Assistance aspects of this
       have an impact on LPMS, because the professional errors committed by lawyers with
       substance abuse problems ties into the issue of practice mismanagement in a variety of
       ways. The Delegates do not see a reason to oppose the resolution on its face, but seek the
       feedback of practice management advisors, Council members and others who may have
       insights.
       177B Blanket Authority—Briefly, the ABA has procedures covering Section lobbying
       activities, which are aimed at assuring that the Sections’ statements do not conflict with
       ABA policy as articulated by the House of Delegates, and avoiding situations where the
       ABA is lobbying for opposing sides of an issue in Congress or some other legislative
       body. The Board of Governors drafted revised Blanket Authority rules that some
       sections felt were too restrictive. The proposed rules were redrafted to incorporate some
       but not all of the sections’ suggestions. Although LPMS does not normally engage in
       lobbying, the Blanket Authority Rules are relevant, because we may want to do so at
       some future time. Moreover, the larger governance issue is whether the sections, through
       the Section Officers Conference should be able to legislate a policy consistent with the
       sections’ interests. The House of Delegates is the ultimate arbiter of ABA policy, so it is
       possible the there will be further amendments to the proposed Blanket Authority Rules in
       Atlanta. We will just have to see if revised language emerges.

If you have any comments concerning any resolution coming before the House, you can submit
them to lpm-discuss@mail.abanet.org. If you have any questions about any resolution or the
House of Delegates generally, you may contact Gary or Susan at gmunneke@law.pace.edu or
srlambreth@hildebrandt.com.

During the Annual Meeting, your Delegates will meet with a group called the Conference of
Section and Division Delegates, where we will learn what issues are important to other sections,
and discuss ways to further the interests of sections collectively. One important area where the
conference will have input is in the governance debate. During the upcoming year, the ABA will
take a look at governance, or stated more bluntly the allocation of power within the organization.
Of particular interest to the sections will be their current under-representation in the House,
Board of Governors and the Nominating Committee. Delegate Gary Munneke will begin a
three-year term on the ABA Nominating Committee at the end of the Annual Meeting, but it has
been a number of years since the Section was represented in the group that selects ABA officers,
and it will be several years before it happens again. By contrast, states maintain continuing
representation on the Nominating Committee. If you plan to be in Atlanta on Sunday, August 8,
you are invited to join Susan and Gary at a reception hosted by the Conference of Section and
Division Delegates, from 6:30 – 8:30 p.m., in the

Over the course of the past year, your Delegates have worked to build bridges with other groups
in the ABA, by identifying Law Practice Management Section members who sit in the House of
Delegates and serve on ABA Standing and Special Committees. We want to thank Larry Smith
and the Section staff for helping us with this task. Although the Section is permitted only two
elected Delegates, and a handful of Section actives serve on Standing or Special Committees,
almost half the members of the House are also members of LPMS, as are a significant number of
Standing and Special Committee members. For the last year, we have communicated with these
members electronically, telling them about issues that concern our Section, and inviting them to
Section events at the Midyear and Annual Meetings. We have invited these members, many of
whom have been active in state and local bar associations, to participate in our educational
programs, products, and social activities, and we have encouraged them to spread the word about
LPMS in their other bar constituencies. If you meet someone new at a Section event, it may be
one of these House and Committee representatives, and we hope you will take the time to
introduce yourselves and welcome them to the Section.
In the upcoming year, Chair Elect Mark Robertson has asked your Delegates to continue this
effort, and to coordinate the activities of Section Members who are involved in other ABA
entities, particularly the House and Standing/Special Committees. If you presently serve or have
been appointed or elected to a position in the ABA, we would like to hear from you and involve
you in this process.



  04prelimagenda.pdf.pd
            f
                              GENERAL INFORMATION FORM

Submitting Entity: Section of Litigation

Submitted by: Patricia Lee Refo, Chair

1.     Summary of Recommendations. This Report and Recommendation requests that the
       ABA encourage federal, state and territorial governments to institute and provide funding
       for uniform lawsuit data collection. It further recommends that the United States
       Department of Justice continue and expand its comparative civil justice survey. The
       issues addressed in this recommendation are the statistical decline in the number of
       lawsuits which result in trials and the concern that the import of that decline cannot fairly
       and effectively be analyzed in the absence of comprehensive and uniformly organized
       data.

2.     Approval by Submitting Entity. This Recommendation was approved by the Section of
       Litigation Council at its regularly scheduled meeting on May 5, 2004.

3.     Has this or a similar recommendation been submitted to the House or Board previously?
       No.

4.     What existing Association policies are relevant to this recommendation and how would
       they be affected by its adoption? The 2003 ABA Issues Handbook refers to the following
       policies and resolutions:
               –policy supporting the increased use of alternative means of dispute resolution by
               federal administrative agencies (1988);
               –resolution supporting the continued use of and experimentation with alternative
               dispute resolution techniques, both before and after a lawsuit is filed (1989);
               –resolution supporting legislation and programs that authorize any federal, state,
               territorial or tribal court, in its discretion, to utilize systems of alternative dispute
               resolution, such as early neutral evaluation, mediation, settlement conferences and
               voluntary (but not mandatory) arbitration (1997);
               –resolution calling for enactment of federal, state and territorial legislation
               establishing ADR procedures as one remedy for resolving disputes between
               patients and group health plans (1999);
               –policy recommending that court-mandated mediation include an opt-out
               prerogative in any action in which one party has perpetrated domestic violence
               against the other party (2000);
               –approved the Uniform Mediation Act (2002).
       These recommendations, which call for standardized data collection and expanded survey
       analysis, express no view on the appropriateness of ADR methods. The
       recommendations are therefore fully consistent with ABA policy.

5.     What urgency exists which requires action at this meeting of the House? The number of
       trials in this country (both civil and criminal) has been declining. In order to evaluate the
                                                 -1-
      cause and effects of this decline, it is crucial that adequate standardized data be collected
      and maintained and that sufficient jurisdictions participate so that meaningful
      comparisons in the data may be made. Data collection is costly and in some jurisdictions
      will require legislative action to provide funding. For the ABA’s position to be
      considered when legislative bodies reconvene in the Fall, these issues must be considered
      at the August 2004 Annual Meeting.

6.    Status of Legislation. N/A.

7.    Costs to the Association. (Both direct and indirect costs). None.

8.    Disclosure of Interest. (If applicable.) Not applicable.

9.    Referrals. We will seek co-sponsorship from all ABA Sections and Divisions.

10.   Contact Person. (Prior to the meeting). JoAnne Epps, Co-Chair, Civil Justice Initiatives
      Task Force and Section Delegate, Section of Litigation, Temple University Beasley
      School of Law, 1719 N. Broad Street, Philadelphia, PA 19122, tel. (215) 204-8993, fax
      (215) 204-2008, <joanne.epps@temple.edu>, and Stephan Landsman, Co-Chair, Civil
      Justice Initiatives Task Force, Section of Litigation, Depaul University College of Law,
      25 East Jackson Boulevard, Chicago, IL 60604-2287, tel. (312) 362-6647, fax (312) 362-
      5448, <slandsma@depaul.edu>.

11.   Contact Person. (Who will present the report to the House). JoAnne Epps, Co-Chair,
      Civil Justice Initiatives Task Force and Section Delegate, Section of Litigation, Temple
      University Beasley School of Law, 1719 N. Broad Street, Philadelphia, PA 19122, tel.
      (215) 204-8993, fax (215) 204-2008, <joanne.epps@temple.edu>.




                                               -2-
                               AMERICAN BAR ASSOCIATION

                                   SECTION OF LITIGATION

                         REPORT TO THE HOUSE OF DELEGATES


                                      RECOMMENDATION



RESOLVED, That the American Bar Association urges the United States Congress and state and
territorial legislative bodies to allocate sufficient funding to ensure that appropriate federal, state
and territorial agencies have means and resources to accomplish standardized data collection and
retention.

FURTHER RESOLVED, That the American Bar Association recommends that:

1. Federal, state and territorial lawsuit data be collected and retained in a standardized manner in
accordance with the State Court Guide to Statistical Reporting 2003;

2. The United States Department of Justice Bureau of Justice Statistics support, and the National
Center for State Courts continue, the Civil Justice Survey, an effort by the National Center for
State Courts to measure general civil litigation in the nation's 75 largest counties;

3. The Survey be enlarged to include a sample of smaller counties to offset the urban bias in the
existing sample;

4. The methodology in the 1992 Civil Justice Survey (wherein data was collected on all general
civil cases filed and disposed, regardless of type of disposition) be utilized.




                                                 -3-
                                EXECUTIVE SUMMARY


1.   Summary. This Report and Recommendation requests that the ABA encourage federal,
     state and territorial governments to institute and provide funding for uniform lawsuit data
     collection. It further recommends that the United States Department of Justice continue
     and expand its comparative civil justice survey.

2.   Summary of Issue. The issues addressed in this recommendation are the statistical
     decline in the number of lawsuits which result in trials and the concern that the import of
     that decline cannot fairly and effectively be analyzed in the absence of comprehensive
     and uniformly organized data.

3.   Explanation. This recommendation addresses these issues by recommending that
     governmental entities keep statistics in a uniform way (according to the guidelines
     published in the State Court Guide to Statistical Reporting 2003) and that a
     comprehensive lawsuit survey conducted by the United States Department of Justice
     Bureau of Justice Statistics be continued and expanded.

4.   Minority Views. No minority views or opposition have been identified at this time.




                                             -4-
                                             REPORT

        This Report is submitted in connection with the recommendations of the Section of
Litigation for increased and standardized collection of lawsuit data. We seek this data in order to
allow full analysis of the reported decrease in the number of trials in U.S. federal and state courts
and to address issues that result from such declining numbers.

         In the federal courts, the percentage of civil cases reaching trial has fallen from 11% in
1962 to 1.8% in 2002. In spite of a five-fold increase in case terminations, the absolute number
of civil trials was 20% lower in 2002 than it was 40 years earlier. On the criminal side,
approximately 15% of criminal defendants were tried in 1962, but less than 5% were tried in
2002. And again, absolute numbers declined. In spite of rising numbers of defendants, the
absolute number of criminal trials was 30% lower in 2002 than in 1962.

        In state courts, the data is less comprehensive, but the overall trends appear comparable.
In states for which data was available between 1976 and 2002, the percentage of civil jury trials
fell from 1.8% to 0.6% and the percentage of criminal jury trials fell from 3.4% to 1.3%. With
respect to states, however, we make these generalizations based on substantially incomplete data.
First, data is available only from 22 states. It is impossible to know, therefore, if the trend is
replicated in the remaining states and territories. Equally importantly, without standardization of
both the scope and manner of data collection, it is impossible to come to meaningful conclusions
about national trends or to make meaningful jurisdiction-to-jurisdiction comparative analyses.

         Under the leadership of the Section of Litigation, substantial study of the Vanishing Trial
has taken place. However, further study of this issue is of central importance to our legal system
and our practices of law. Without comprehensive information, it is impossible to confirm,
compare and, in turn, to characterize the decline in trial rates. Perhaps the decline is the result of
greater judicial efficiency, or of earlier winnowing out of specious lawsuits. Perhaps it reflects
the influence of alternative dispute mechanisms. Or a more active judiciary. Or less contentious
clients. Perhaps the decline is a response to the costs of trial, both real and perceived. Or might
it be a retreat from public judging and public decisions to a world of private judging and
confidential decisions? Analyzing the role of these and other potentially significant contributing
factors requires accurate, comprehensive and standardized data. It is this data collection which
this Recommendation and Report is seeking. We recommend that lawsuit data be collected for
all courts: federal, state and territorial, and that it be collected and maintained in a standardized
manner. Such data collection will enable both comprehensive and comparative analysis of the
existence, causes, effects and significance of the decline in rates of trials.



                                               Patricia Lee Refo, Chair
                                               Section of Litigation
                                               August 2004



                                                 -5-
                            AMERICAN BAR ASSOCIATION
                    STANDING COMMITTEE ON CLIENT PROTECTION
                              SECTION OF FAMILY LAW
                      NATIONAL ORGANIZATION OF BAR COUNSEL
                             STATE BAR OF NEW MEXICO
                                VIRGINIA STATE BAR
                        WASHINGTON STATE BAR ASSOCIATION
                        REPORT TO THE HOUSE OF DELEGATES

                                    RECOMMENDATION

 1   RESOLVED, That the American Bar Association adopts the Model Court Rule on Insurance
 2   Disclosure, dated August 2004.
 3
 4
 5
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                                              1
32                          Model Court Rule on Insurance Disclosure
33                                       August 2004
34
35   RULE ___.   INSURANCE DISCLOSURE
36
37         A.    Each lawyer admitted to the active practice of law shall certify to the [highest
38               court of the jurisdiction] on or before [December 31 of each year]: 1) whether the
39               lawyer is engaged in the private practice of law; 2) if engaged in the private
40               practice of law, whether the lawyer is currently covered by professional liability
41               insurance; and 3) whether the lawyer is exempt from the provisions of this Rule
42               because the lawyer is engaged in the practice of law as a full-time government
43               lawyer or is counsel employed by an organizational client and does not represent
44               clients outside that capacity. Each lawyer admitted to the active practice of law in
45               this jurisdiction who reports being covered by professional liability insurance
46               shall notify [the highest court in the jurisdiction] in writing within 30 days if the
47               insurance policy providing coverage lapses, is no longer in effect or terminates for
48               any reason.
49
50         B.    The foregoing shall be certified by each lawyer admitted to the active practice of
51               law in this jurisdiction in such form as may be prescribed by the [highest court of
52               the jurisdiction]. The information submitted pursuant to this Rule will be made
53               available to the public by such means as may be designated by the [highest court
54               of the jurisdiction].
55
56         C.    Any lawyer admitted to the active practice of law who fails to comply with this
57               Rule in a timely fashion, as defined by the [highest court in the jurisdiction], may
58               be suspended from the practice of law until such time as the lawyer complies.
59               Supplying false information in response to this Rule shall subject the lawyer to
60               appropriate disciplinary action.




                                                   2
 61                                              EXECUTIVE SUMMARY
 62
 63   A. Summary of Recommendation
 64   The ABA Standing Committee on Client Protection (“the Committee”) recommends that the
 65   American Bar Association adopt the Model Court Rule on Insurance Disclosure (“the Model
 66   Court Rule”). The ABA Model Court Rule on Insurance Disclosure requires lawyers to disclose
 67   on their annual registration statements whether they maintain professional liability insurance.
 68   The Model Court Rule excludes from the Rule’s reporting requirement those lawyers who are
 69   not engaged in the active practice of law and those who are engaged in the practice of law as
 70   full-time government lawyers or as counsel employed by an organizational client and do not
 71   represent clients outside that capacity. The Rule places an affirmative duty upon lawyers to
 72   notify the highest court whenever the insurance policy covering the lawyer’s conduct lapses or is
 73   terminated. This ensures that the information reported to the highest court is accurate during the
 74   entire reporting period.
 75
 76   B. Summary of Issue Addressed
 77   The purpose of the Rule is to provide a potential client with access to relevant information
 78   related to a lawyer’s representation in order to make an informed decision about whether to hire
 79   a particular lawyer. The Model Court Rule is a balanced standard that allows potential clients to
 80   obtain relevant information about a lawyer if they initiate an inquiry, while placing a modest
 81   annual reporting requirement on lawyers.
 82
 83   C. Explanation of How the Proposed Rule Addresses the Issue
 84   The Model Court Rule proposed by the Committee allows potential clients to make fully informed decisions
 85   whether to hire particular lawyers by allowing those potential clients access to relevant information related to the
 86   lawyers’ representation. The information submitted by lawyers will be made available by such means as designated
 87   by the highest court in the jurisdiction. For example, in Nebraska and Virginia, information regarding a lawyer’s
 88   professional liability insurance is made available to a potential client if the client telephones the bar association and
 89   requests it. The information can also be accessed on the bars’ websites. (See, www.vsb.org, under the headings
 90   Public Information, Attorney Records Search, Attorneys without Malpractice Insurance). To date, ten jurisdictions
 91   have addressed the issue of reporting the maintenance of professional liability insurance.
 92
 93   D.      Summary of Minority Views
 94   The Committee has been advised that the ABA Standing Committee on Lawyers' Professional
 95   Liability ("LPL Committee") is opposed to the Report and Recommendation. The LPL
 96   Committee confirms its position that the purchase of professional liability insurance is a sound
 97   business practice for lawyers. Nevertheless, The LPL Committee also believes that the topic of
 98   lawyers' professional liability insurance is complex and unfamiliar territory for most of the
 99   public and many lawyers. Given the nature of claims-made coverage, the LPL Committee
100   believes it is likely that the general public's idea and expectations of what "insurance coverage"
101   means at the time a client hires a lawyer, is much different than actual reality. Therefore, simply
102   telling a client that insurance coverage exists at the time of hiring can be tantamount to telling
103   the client nothing.


                                                                 3
104                                                   REPORT
105
106    Continuity of judicial regulation of the legal profession depends on action taken by the profession itself.
107                                               Robert B. McKay, 1990
108
109
110   The ABA Standing Committee on Client Protection (“the Committee”) recommends that the
111   American Bar Association adopt the Model Court Rule on Insurance Disclosure (“the Model
112   Court Rule”).
113
114   OVERVIEW
115
116   The ABA Model Court Rule on Insurance Disclosure requires lawyers to disclose on their
117   annual registration statements whether they maintain professional liability insurance. The
118   purpose of the Rule is to provide a potential client with access to relevant information related to
119   a lawyer’s representation in order to make an informed decision about whether to retain a
120   particular lawyer. The intended benefit of the Model Court Rule is to facilitate the client’s
121   ability to determine whether a lawyer is insured. While the Model Court Rule does not require a
122   lawyer to disclose directly to clients whether insurance is maintained or to maintain professional
123   liability insurance, it does impose a modest annual reporting requirement on the lawyer. The
124   information reported by lawyers will be made available by such means as designated by the
125   highest court in the jurisdiction. While this information could be sought during the initial
126   retention process, many clients are unsophisticated and may be reluctant to raise such issues.
127
128   Paragraph A of the Model Court Rule requires a lawyer to disclose on the annual registration
129   statement whether professional liability insurance is maintained. Excluded from the Rule’s
130   reporting requirement are those lawyers who are not engaged in the active practice of law and
131   those who are engaged in the practice of law as full-time government lawyers or as counsel
132   employed by an organizational client and do not represent clients outside that capacity. A lawyer
133   who is employed to represent an organization on an ongoing basis generally represents a
134   knowledgeable and sophisticated client. Additionally, organizational or governmental clients
135   may have their own professional liability insurance policies.
136
137   Finally, Paragraph A places an affirmative duty upon lawyers to notify the highest court
138   whenever the insurance policy covering the lawyer’s conduct lapses or is terminated. This
139   ensures that the information reported to the highest court is accurate during the entire reporting
140   period.
141
142   Paragraph B of the Model Court Rule requires lawyers to certify to the accuracy of the
143   information reported. Paragraph B also requires that the information submitted by lawyers will
144   be made available by such means as designated by the highest court. For example, in Nebraska
145   and Virginia, information regarding a lawyer’s professional liability insurance is made available


                                                           4
146   to a potential client if the client telephones the bar association and requests it. The information
147   can also be accessed on the bars’ websites. (See, www.vsb.org, under the headings Public
148   Information, Attorney Records Search, Attorneys without Malpractice Insurance). It was
149   reported to the Committee that this Virginia Bar website receives 1250 visits per month.
150
151   Paragraph C of the Model Court Rule clarifies that failure or refusal to provide the required
152   information would result in a lawyer’s administrative suspension from the practice of law until
153   such time as the lawyer complies with the Model Court Rule. The Committee is not
154   recommending that a court amend its current Rules of Professional Conduct. Failure or refusal
155   to make the required disclosure would, therefore, not be considered a disciplinary offense.
156   Nevertheless, providing false information in response to the Model Court Rule would subject the
157   lawyer to appropriate disciplinary action, pursuant to ABA Model Rules of Professional
158   Conduct, Rule 8.4(c), that prohibits, “conduct involving dishonesty, fraud, deceit or
159   misrepresentation.”
160
161   Prior to proposing the adoption of this Model Court Rule, the Committee recognized the
162   importance of engaging in an objective and comprehensive inquiry and of encouraging as many
163   others as possible to lend assistance. To stimulate discussion, in July 2002, the Committee
164   circulated a proposed amendment to Rule 1.4 of the ABA Model Rules of Professional Conduct.
165   The proposed amendment to Rule 1.4 would have required that lawyers disclose directly to their
166   clients whether they maintain professional liability insurance. The Committee invited written
167   submissions by state and local bar associations, ABA entities, and other representative
168   organizations of the legal profession and the public. The Committee’s proposal received little
169   support.
170
171   In July 2002, the Committee circulated a proposed amendment to Rule 1.4 of the ABA Model
172   Rules of Professional Conduct. The proposed amendment required lawyers to disclose directly
173   to their clients whether they maintain professional liability insurance. The Committee invited
174   written submissions from state and local bar associations, ABA entities, and other representative
175   organizations of the legal profession and the public. The Committee’s proposal received little
176   support.
177
178   In December 2003, the Committee circulated a proposed ABA Model Rule on Financial
179   Responsibility to state and local bar associations, ABA entities, and other interested
180   organizations and was posted on the Committee’s website. The Rule required lawyers in private
181   practice to disclose on their annual registration statement whether they maintained insurance of
182   at least $100,000/$300,000 and to disclose any unsatisfied final legal malpractice judgments
183   against them or the law firm where they were employed.
184
185   The majority of the comments the Committee received favored the concept of requiring lawyers
186   to disclose to the highest court in the jurisdiction whether they maintain professional liability



                                                      5
187   insurance or another form of financial responsibility. The Committee did receive comments that
188   the Model Rule should not contain specific policy limits. There was also concern raised that the
189   requirement to report unsatisfied final judgments would place too harsh a burden on lawyers,
190   particularly those that had been employed at several different law firms. Finally, there were
191   comments that it would be difficult to determine the value of “another form of financial
192   responsibility.”
193
194   Based upon those comments, the Committee re-named the proposed Model Court Rule as the
195   Model Court Rule on Insurance Disclosure. This was to clarify that the Committee did not
196   intend for the Model Court Rule to be incorporated into a jurisdiction’s Model Rules of
197   Professional Conduct. The Committee also eliminated reference to specific policy limits or other
198   forms of financial responsibility and does not require the reporting of unsatisfied final
199   judgments. The currently proposed Model Court Rule only requires lawyers to disclose whether
200   they maintain professional liability insurance.
201
202   INSURANCE REPORTING REQUIREMENTS IN UNITED STATES JURISDICTIONS
203
204   To date, ten jurisdictions have addressed the issue of reporting the maintenance of professional
205   liability insurance. The highest courts in five jurisdictions, Delaware, Nebraska, North Carolina,
206   Michigan and Virginia, require lawyers to disclose on their annual registration statements
207   whether they maintain professional liability insurance. The Committee’s proposed Model Court
208   Rule is patterned after the reporting requirements in these jurisdictions.
209
210   The highest courts in four other jurisdictions, Alaska, New Hampshire, Ohio and South Dakota,
211   have amended their Rules of Professional Conduct to require lawyers to disclose directly to their
212   clients whether they maintain professional liability insurance. The Rule in South Dakota,
213   effective January 1, 1999, is the most comprehensive.1
214
215   In addition, the Oregon Supreme Court, while not having a disclosure rule per se, mandates
216   professional liability insurance as a condition precedent to practicing law.
217
218   EXISTING ABA POLICIES

      1
        Rule 1.4 of the South Dakota Rules of Professional Conduct requires South Dakota lawyers to promptly disclose to
      their clients if they do not maintain professional liability insurance with limits of at least $100,000, or if during the
      course of the representation, the insurance policy lapses or is terminated, lawyers shall disclose to their clients by
      including a component of the lawyers’ letterhead, using the following specific language, either that: (1) “This lawyer
      is not covered by professional liability insurance;” or (2) “This firm is not covered by professional liability
      insurance.” The required disclosure is to be included in every written communication with clients. Rule 7.5 (Firm
      Names and Letterheads) of the South Dakota Rules of Professional Conduct provides that the disclosure shall be in
      black ink with type no smaller than the type used for showing the individual lawyer’s names.




                                                                 6
219
220   On three previous occasions, the American Bar Association has adopted policies requiring
221   lawyers in some circumstances to maintain professional liability insurance. In August 1989, the
222   ABA House of Delegates adopted Minimum Quality Standards for lawyer referral services. The
223   minimum standards were adopted as client protection measures. One of the standards is that
224   participating lawyers maintain malpractice insurance coverage.
225
226   In August 1992, the ABA House of Delegates adopted Model Supreme Court Rules Governing
227   Lawyer Referral And Information Services. Rule 4 of the Model Rules requires that in order for a
228   lawyer to participate in the service, the lawyer shall maintain in force a policy of errors and
229   omissions insurance, or provide proof of financial responsibility, in an amount at least equal to
230   the minimum established by the Committee that oversees the service. The Comment to Model
231   Rule 4 states that the intent of the insurance requirement is to ensure that, in the event errors are
232   made by the participating lawyer, the client has redress through the lawyer's policy of insurance.
233   The requirement is contained in the ABA Minimum Quality Standards for lawyer referral
234   services (See above.). The Comment notes, that only by requiring such insurance, or a showing
235   of financial responsibility, can a client best be protected. In states where lawyer referral services
236   are not immune from lawsuits for negligent referral, this requirement will help protect the lawyer
237   referral service from such suits; in states where such immunity exists, it ensures that a client may
238   find redress against the principal negligent party, the lawyer.
239
240   In August 1993, the ABA House of Delegates adopted the ABA Model Rule for the Licensing of
241   Legal Consultants. The Model Rule sets forth the requirements for a foreign lawyer to practice
242   law as a foreign legal consultant in the United States on a permanent basis. The Model Rule
243   requires that foreign legal consultants maintain professional liability insurance.
244
245   THE PROPOSED MODEL COURT RULE ON INSURANCE DISCLOSURE
246
247   The Model Court Rule properly places the burden for reporting the maintenance of insurance on
248   the lawyer. Potential clients should not be required to inquire of a lawyer if professional liability
249   insurance is maintained. Many unsophisticated clients either assume that a lawyer is required to
250   provide malpractice insurance or do not even think to inquire if they lawyer is covered.2 The
251   proposed Model Court Rule would provide potential clients with the ability to independently
252   determine whether a lawyer maintains professional liability insurance. The Model Court Rule is


      2
        A Minnesota lawyer reported to the Committee that based upon his experience in handling legal malpractice
      actions since 1996, it is a foregone conclusion that every consumer of legal services in the State of Minnesota
      presumes that the lawyer they hire is insured. He further stated that it is also a given that virtually none of the
      consumers of legal services ever ask or receive any confirmation as to the insurance status of their lawyer at the time
      of retention.



                                                                7
253   a balanced standard that allows potential clients to obtain relevant information about a lawyer if
254   they initiate an inquiry, while placing a modest annual reporting requirement on lawyers.
255
256   Lawyers in the United States, except in Oregon, are not required to maintain professional
257   liability insurance. While clients have the right to hire lawyers who do not maintain professional
258   liability insurance, those who do so will likely have no avenue of financial redress if the lawyer
259   commits an act of negligence. Lawyer disciplinary proceedings primarily offer prospective
260   protection to the public. They either remove lawyers from practice or seek to change the lawyers'
261   future conduct. Protection of clients already harmed is minimal. While lawyer-respondents are
262   sometimes ordered to pay restitution in disciplinary cases, in many jurisdictions the failure of
263   lawyers to make restitution ordered in disciplinary proceedings will not bar subsequent
264   readmission to practice. Clients can also seek restitution from client protection funds when
265   dishonest conduct is involved. Client protection funds are an innovation of the legal profession
266   unmatched by any other profession. Unfortunately, the ability of client protection funds to
267   compensate clients is limited. Restitution is generally available only when a lawyer has
268   misappropriated client funds. Legal malpractice claims are the only manner by which clients
269   can seek redress for acts of negligence. Prospective clients should have the right to decide
270   whether they want to hire lawyers who do not maintain liability insurance. The Model Court
271   Rule offers the prospective client the ability to make an informed decision.
272
273   Lawyers who lack insurance are not immune from malpractice liability. Claims against
274   uninsured lawyers are often abandoned, precisely because there is no available insurance.
275   Plaintiff’s counsel know that in evaluating whether to file such a claim, a threshold issue is
276   whether the lawyer is insured. If the claim for damages is modest, many plaintiff’s legal
277   malpractice lawyers will elect not to file suit because the risk that any judgment will prove to be
278   uncollectible, in light of how difficult these claims are in other respects, simply makes such
279   claims not worth pursuing. The data on malpractice claims reported by the ABA Standing
280   Committee on Lawyers’ Professional Liability is incomplete since potential claims not pursued
281   due to a lack of insurance are not factored.3
282
283   Malpractice insurance is not a panacea for injuries caused by lawyer negligence. Nevertheless,
284   whether a lawyer maintains professional liability insurance is a material fact that potential clients
285   should have a right to know in retaining counsel. Professional liability insurance does ensure
286   that a client may find financial redress against the principal negligent party, their lawyer. The
287   proposed Model Court Rule provides the public with access to relevant information; it does not

      3
        Data has been collected on legal malpractice claims from the National Association of Bar-Related Insurance
      Companies and commercial insurers for the period January 1, 1996 through December 31, 1999. During that period,
      there were reported to be 36,844 legal malpractice claims nationally. This data did not cover the entire lawyer
      population: a significant percentage of practicing lawyers have no malpractice coverage and not all U.S. malpractice
      insurers provided data. Profile of Legal Malpractice Claims, 1996-1999, American Bar Association, Standing
      Committee on Lawyers’ Professional Liability.


                                                               8
288   mandate that lawyers maintain malpractice insurance. The Model Court Rule incorporates a
289   provision requiring an entity designated by the highest court to make the reported information
290   available to the public. The information would presumably be available by telephone, or
291   preferably, by Internet access.
292
293   The bar or the lawyer regulatory agency should also inform the public of the limits on the
294   usefulness of this information, e.g., that most policies are “claims made” policies and that
295   policies generally do not cover dishonesty or other intentional acts. Given the nature of claims-
296   made coverage, it is possible that the insurance policy a lawyer has in place at the time when a
297   prospective client is likely to inquire about it, may have lapsed at the time a claim for legal
298   malpractice is made. Most lawyers will probably purchase “tail” coverage to protect themselves
299   from this situation but the public should be made aware of the unique nature of professional
300   liability insurance. The Committee was advised that the experience in Alaska has been that most
301   lawyers who have malpractice insurance today will most likely have it in the future and that,
302   therefore, the value of making the information available to the public outweighed its potential to
303   be misleading by the fact that the policy had lapsed by the time a claim was made.
304
305   The Committee recommends that each jurisdiction adopting the Model Court Rule decide if it
306   wants to include, in its version of the Rule, minimum limits of professional liability coverage.
307   Alaska, New Hampshire and Ohio require lawyers to disclose to their clients if the lawyer does
308   not maintain a policy with limits of at least $100,000 per claim and $300,000 annual aggregate.4
309   South Dakota requires its lawyers to disclose to their clients if the lawyer does not maintain a
310   policy with limits of at least $100,000.5 The Committee was also advised that a professional
311   liability insurance policy with limits of liability of $200,000/600,000 is the smallest policy limit
312   now offered by Minnesota Lawyers Mutual, the largest legal malpractice insurer in Minnesota.6
313
314   CONCLUSION
315
316   The Model Court Rule on Insurance Disclosure would reduce potential public harm by giving
317   consumers of legal services an opportunity to decline to hire a lawyer who does not maintain
318   professional liability insurance. Under this Model Court Rule, a lawyer would inform the
319   highest court in the jurisdiction, or designated entity, whether insurance is maintained. The court
320   would make this information available to the public. During the reporting year, if the policy is
321   terminated or modified, the lawyer would be required to inform the court. The ultimate decision
322   whether or not to maintain professional liability insurance remains with lawyers.

      4
        Alaska Court Rules, Rule 1.4 (c), Alaska Rules of Professional Conduct; Rule 1.17, New Hampshire Rules of
      Professional Conduct; and Ohio Rules of Court, Code of Professional Responsibility, DR 1-104.
      5
        South Dakota Rules of Professional Conduct, Rule 1.4.
      6
        Letter dated February 27, 2004, to the Committee from the Minnesota State Bar Association Rules of Professional
      Conduct Committee.


                                                              9
323
324   Robert D. Welden, Chair
325   Standing Committee on Client Protection
326   August 2004
327
328                                GENERAL INFORMATION FORM
329
330
331   Submitting Entity: Standing Committee on Client Protection
332
333   Submitted By:         Robert D. Welden, Chair
334
335
336   1.     Summary of Recommendation:
337          The ABA Model Court Rule on Insurance Disclosure requires lawyers to disclose on
338          their annual registration statements whether they maintain professional liability
339          insurance. The purpose of the Rule is to provide a potential client with access to relevant
340          information related to a lawyer’s representation in order to make an informed decision
341          about whether to retain a particular lawyer. While the Model Court Rule does not require
342          a lawyer to disclose directly to clients whether insurance is maintained or to maintain
343          professional liability insurance, it does impose a modest annual reporting requirement on
344          the lawyer. The information reported by lawyers will be made available by such means
345          as designated by the highest court in the jurisdiction.
346
347   2.     Approval by Submitting Entity:
348          The Recommendation was approved by the Committee at its meeting on February 7,
349                2004.
350
351          3.     Has this or a similar recommendation been submitted to the House or Board previously?
352          No.
353
354          4.      What existing Association policies are relevant to this recommendation and how
355                  would they be affected by its adoption?
356          There are several Association policies that are relevant to this recommendation. Those
357          policies would not be amended or altered but rather would be complemented by this
358          recommendation:
359
360                 In August 1989, the ABA House of Delegates adopted Minimum Quality
361                 Standards for lawyer referral services. The minimum standards were adopted as
362                 client protection measures. One of the standards is that participating lawyers
363                 maintain malpractice insurance coverage.



                                                         10
364
365                 In August 1992, the ABA House of Delegates adopted Model Supreme Court
366                 Rules Governing Lawyer Referral And Information Services. Rule 4 of the Model
367                 Rules requires that in order for a lawyer to participate in the service, the lawyer
368                 shall maintain in force a policy of errors and omissions insurance, or provide
369                 proof of financial responsibility, in an amount at least equal to the minimum
370                 established by the Committee that oversees the service. The Comment to Model
371                 Rule 4 states that the intent of the insurance requirement is to ensure that, in the
372                 event errors are made by the participating lawyer, the client has redress through
373                 the lawyer's policy of insurance. The requirement is contained in the ABA's
374                 Minimum Quality Standards for lawyer referral services (See above.). The
375                 Comment notes that only by requiring such insurance, or a showing of financial
376                 responsibility, can a client best be protected. In states where referral services are
377                 not immune from lawsuits for negligent referral, this requirement will help protect
378                 the service from such suits; in states where such immunity exists, it ensures that a
379                 client may find redress against the principal negligent party, the lawyer.
380
381                 In August 1993, the ABA House of Delegates adopted the ABA Model Rule for
382                 the Licensing of Legal Consultants. The Model Rule sets forth the requirements
383                 for a foreign lawyer to practice law as a foreign legal consultant in the United
384                 States on a permanent basis. Section 6 (B) of the Model Rule requires that
385                 foreign legal consultants maintain professional liability insurance.
386
387          5.     What urgency exists which requires action at this meeting of the House?
388          Whether a lawyer maintains professional liability insurance is a material fact that may
389          bear upon a client’s decision to hire the lawyer. Lawyers should be required to make this
390          information available to the highest court in the jurisdiction so that prospective clients
391          can make a fully informed decision when deciding whether to hire a lawyer.
392
393   6.     Status of Legislation.
394          Not applicable.
395
396   7.     Cost to the Association.
397          None.
398
399   8. Disclosure of Interest.
400         None.
401
402   9. Referrals.
403         On April 7, 2004, the proposed ABA Model Court Rule on Insurance Disclosure was
404         referred to members of the judiciary, the presidents of state and local bar associations,


                                                     11
405         Chairs and Directors of ABA entities, Chief Disciplinary Counsel, members of the legal
406         academy and other interested parties and individuals.
407
408         To date, the Section of Family Law, the National Organization of Bar Counsel, the State
409         Bar of New Mexico, the Virginia State Bar and the Washington State Bar Association
410         have agreed to co-sponsor the Report and Recommendation. The Standing Committee on
411         Lawyers’ Professional Liability has stated it is opposed to the Model Court Rule.
412
413   10.   Contact Person. (Prior to the meeting.)
414         Robert D. Welden
415         Washington State Bar Association
416         2101 Fourth Avenue, 4th Floor
417         Seattle, WA 98121-2300
418         Tel:     206/727-8232
419         Fax: 206/727-8320
420         E-mail: bobw@wsba.org
421
422         John A. Holtaway
423         Client Protection Counsel
424         ABA Center for Professional Responsibility
425         312 North Clark Street, 15th Floor
426         Chicago, IL 60610-4714
427         Ph:     312/988-5298
428         Fax: 312/988-5491
429         jholtaway@staff.abanet.org
430
431   11.   Contact Person. (Who will present the report to the House.)
432         Robert D. Welden, Chair
433




                                                  12
                          AMERICAN BAR ASSOCIATION

                             BOARD OF GOVERNORS

                    REPORT TO THE HOUSE OF DELEGATES


                               RECOMMENDATION


1 Resolved, That the House of Delegates adopt a revised blanket authority procedure,
2 dated August 2004.                                                                   Deleted: February
                                Representation by Sections
                                    (Blanket Authority)
                                      (August 2004)                                          Deleted: February


     At the 1981 Midyear Meeting, the House of Delegates adopted the following
"blanket authority" policy, and amended it at the 1991 Annual Meeting. The House of
Delegates further amended the policy in February 2004.

     Resolved, That the House of Delegates rescinds the "blanket authority" statement
presently in effect and adopts instead the following blanket authority resolution:

      Be It Resolved, That in order to implement the specific authority required by §25.1
of the Bylaws of the Association, as interpreted by the House of Delegates in this
resolution, any section of the Association may present a policy statement on matters
within its primary or special expertise and jurisdiction to a federal, state, or municipal
legislative body, governmental agency, court (with respect to procedural rules only),
interstate governmental body, or international governmental body, subject to the
following conditions:

      A.    Requirements of the Application for Blanket Authority
            1. There shall be a clear statement of the policy position to be taken by
                the section.
            2. The section shall submit within the times provided in Part B, below, all
                communications to be addressed to the federal, state, or municipal
                legislative body, governmental agency, court, interstate governmental
                body, or international governmental body, including, without limitation,
                the following:
                a. Any report or resolution;
                b. Prepared testimony;
                c. Exhibits;
                d. Letter of transmittal;
                e. Executive Summary.
            3. The position to be taken by the section must:                                 Deleted: ¶
                a. Not be in conflict with current Association policy;                       Deleted: and
                b. Not be in conflict with an existing blanket authority statement; and      Formatted: Bullets and Numbering
                c. Have been authorized by the section in accordance with its Bylaws.        Deleted: b
            4. The documents to be submitted on behalf of the section must make
               clear that they are being presented only on behalf of the section and not
               on behalf of the Association.
            5. The application must disclose any material interest in the subject
               matter of the policy on the part of any member of a section committee
               which initiated the proposal and of the section council which approved
               the submission of the request by reason of specific employment or
               representation of clients.
            6. The application shall state the date of proposed submission to the
               federal, state, or municipal legislative body, governmental agency,



                                            2
        court, interstate governmental body, or international governmental
        body.
     7. Two or more sections may request to file a statement jointly.                  Formatted: Bullets and Numbering


B.   Procedure to Be Followed by Section in Filing Application for Blanket
     Authority
     1. Normal Procedure
         a. At the earliest possible time, but not less than ten (10) working days
             before the proposed submission date, the section shall send an
             application meeting the requirements of Part A, above, to (i) the
             Chair of the House of Delegates; (ii) the Secretary of the
             Association at the American Bar Center, Chicago, Illinois; (iii) the
             Governmental Affairs Office, Washington, D.C.; (iv) the chair and
             staff liaison of each section; and (v) the chair and staff liaison of
             each committee or affiliated organization which appears to have an
             interest in the matter.
         b. At the same time, the section shall send to the Chair of the House,
             the Secretary of the Association and the Governmental Affairs
             Office (at the places indicated in Part B, section 1a, above) a list of
             all distributees to whom the application has been sent.
         c. In the case of a policy statement to be presented to a municipal or
             state agency or legislature, the section shall at the same time also
             send an application meeting the requirements of Part A, above, to
             all statewide bar associations in that state and to local bar
             associations in that state which are represented in the House of
             Delegates.
         d. In transmitting its application under this procedure, the section shall
             utilize personal delivery, facsimile transmission, e-mail or other
             electronic communication, or express mail which is available to the
             recipients designated herein.
         e. Lengthy submissions, e.g. 10 pages, shall be accompanied by an
             Executive Summary.
     2. Expedited Procedure
             In situations where submission of the application ten (10) working
             days before the proposed submission date is not possible:
         a. The section shall cause a copy of the application meeting the
             requirements of Part A, above, to be received by, or delivered to: (i)
             the Chair of the House of Delegates; (ii) the Secretary of the
             Association at the American Bar Center, Chicago, Illinois; (iii) the
             Governmental Affairs Office, Washington, D.C.; (iv) the chair and
             staff liaison of each section; and (v) the chair and staff liaison of
             each committee or affiliated organization which appears to have an
             interest in the matter, not less than two (2) working days prior to the
             proposed submission date.
         b. In the case of a statement to be presented to a municipal or state
             agency or legislature, the section shall also cause a copy of said



                                     3
            application to be received by all statewide bar associations in that
            state and local bar associations in that state which are represented
            in the House of Delegates not less than at least two (2) working
            days prior to the proposed submission date.
         c. To its application the section also shall append a statement
            explaining why the 10-day procedure outlined above has not been
            followed.
         d. In transmitting its application under this expedited procedure, the
            section shall utilize personal delivery, facsimile transmission, e-mail
            or other electronic communication, or express mail which is
            available to the recipients designated herein.
         e. Lengthy submissions shall be accompanied by an Executive
            Summary.

C.   Procedure to Be Followed in Considering Applications for Blanket Authority
     1. The Office of the Secretary will determine whether proper distribution
         of the application has been made.
     2. The Chair of the House of Delegates or the Secretary of the
         Association may object to the section presentation if:
         a. It is in conflict with current Association policy; or
         b. The proposed statement is not within the primary or special
             expertise and jurisdiction of the section submitting it; or
         c. The matter is of such significance to the legal profession and the
             Association as a whole that no presentation should be made
             without specific authorization from the Board of Governors or the
             House of Delegates; or
         d. The statement merely reaffirms existing Association policy
             approved within the preceding six years.
     3. If a section or committee desires to object to the presentation of a
         section policy position under blanket authority, it shall immediately
         communicate its objection and reasons therefore by telephone, and
         electronically, to (i) the Chair of the House of Delegates; (ii) the
         Secretary of the Association; and (iii) the section desiring to submit the
         position under blanket authority.
     4. If no objection to the section presentation is received the section may
         present its statement to the federal, state or municipal legislative body,
         governmental agency, court, interstate governmental body, or
         international governmental body, on or after the proposed submission
         date.
     5. When an objection has been made, the Office of the Secretary will
         immediately notify the section seeking blanket authority, and if that
         section so requests, will transmit the application together with any
         objection thereto to the Board of Governors for its consideration.
     6. If an objection is made, the section shall not present its statement of
         policy unless approval is obtained from the Board of Governors or the
         House of Delegates.



                                    4
     7.   Blanket authority when granted under the normal procedure shall
          continue for a period of two years; when granted under the expedited
          procedure, for ninety (90) days. Upon application under the normal
          procedure it may be renewed for successive two-year periods.
     8.   Copies of the transmitted letter and comments must be
          contemporaneously sent to (i) the Secretary of the Association in care
          of the Policy Administration Division at the American Bar Center,
          Chicago, Illinois; and (ii) the Governmental Affairs Office, Washington,
          D.C.

D.   Authority of Section to Submit Technical Comments
      1. The blanket authority procedure described above in parts A, B and C,
         is not applicable when a section submits technical comments to a
         government executive branch agency and/or government independent             Deleted: agency
      2.         agency (hereinafter “governmental agency”) pursuant to this          Formatted
         Part D.“Technical comments” are defined as comments that are                 Deleted: ¶
         narrowly-focused within a particular section’s primary or special            Deleted: ¶
         expertise and jurisdiction, and are being submitted in response to a
         time limited solicitation for comments by a governmental agency that
         specifies a time limit of not more than 60 days.                             Deleted: .
      2. Technical comments                                                           Formatted: Bullets and Numbering
         a. May not be in conflict with current Association policy;                   Deleted: and
         b. May not conflict with other comments authorized to be submitted           Deleted: policy approved
             pursuant to the blanket authority procedure; and                         Deleted: .
         c. May not conflict with existing submitted technical comments.
      3. The Board may grant to a section the authority to submit “technical          Formatted: Bullets and Numbering
         comments” as defined herein on an ongoing basis to a specified
         governmental agency on specified subject matters. The grant of such
         authority will generally be for three years but subject to rescission by
         the Board at any time. The grant of authority may be renewed for
         additional three-year terms by this same application procedure. The
         grant of such authority is not necessarily exclusive; more than one
         section may be granted such authority with respect to a specified
         governmental agency on a specified subject matter, and two or more
         sections may jointly seek such authority.
         a. A section desiring such authority shall submit to the Board an
             application, which shall state the governmental agency or agencies
             to which it desires to submit technical comments and the subject
             matter areas on which it intends to comment.
         b. The applying section shall at the time of application circulate its       Deleted: should
             application to the Chair and ABA staff liaison of each section. In       Deleted: and
             addition it shall be circulated to the Chair and staff liaison of each
             committee or affiliated organization which may have an interest in       Deleted: ,
             the agencies and/or subject matter areas indicated in the                Deleted: appears to
             application. Each of these entities will be invited to notify the
             applying section and the Board whether it opposes the request or



                                    5
      whether it would like to be a “reviewing entity” for any or all
      technical comments submitted pursuant to a grant of authority to
      the applying section. An entity with expertise may state a reasoned
      objection or request to be a reviewing entity within thirty (30) days
      of notice of the application. The Board may determine whether and
      with respect to what matters an entity will be a reviewing entity.
   c. The Board may approve, deny, or modify the application and may
      specify one or more other entities as a “reviewing entity.”               Deleted: . It may specify that the
                                                                                applying section must submit all or
4. Technical comments may be submitted to a governmental agency on              some of its technical comments to a
   behalf of the section or an entity of a section which has been granted       reviewing entity or entities at least two
                                                                                business days in advance of the
   such authority under Section 4 as the views of the section or the            proposed submission date. A
   section entity, in accordance with the following procedure:                  reviewing entity may object to the
                                                                                filing; if it does, the President of the
   a. The comments must be reviewed and approved for submission by              Association will decide whether or not
      section leadership and must be accompanied by a certification,            the technical comments may be
                                                                                submitted.
      signed by the section chair, that the comments have been reviewed
                                                                                Deleted: 5
      and approved by the section leadership as technical comments
      within the section’s primary or special expertise and jurisdiction.
   b. The section must submit the proposed technical comments to each
      reviewing entity promptly upon preparation of such technical
      comments but in any event at least two (2) business days in
      advance of the proposed submission date. when the comment                 Formatted
      period is thirty (30) days or fewer and at least five (5) business days   Formatted
      in advance of the proposed submission date when the comment
      period is between thirty (30) and sixty (60) days. A reviewing entity     Formatted
      may object to the filing by sending an email or fax to the Chair of       Formatted
      the submitting entity, to the Secretary of the Association in care of
      the Policy Administration Office at the American Bar Center,
      Chicago, Illinois, and to the Director of the ABA Governmental
      Affairs Office in Washington, D.C. If the entities cannot resolve
      their differences, the President of the Association or the President’s
      designee will decide whether or not the technical comments may be
      submitted. Another section having authority with respect to the
      same governmental entity and specified subject matter may submit
      its own technical comments, subject to the “technical comments”
      procedures of this Section.                                               Deleted: .
   c. Two or more sections may request to file technical comments               Formatted: Bullets and Numbering
      jointly.
   d. The comments must contain a disclaimer that specifically states           Deleted: b
      the comments do not represent the policy of the Association or,           Inserted: b
      when appropriate, the views of the section.
   e.Comments of individual members of sections shall not be submitted          Deleted: c
      to a governmental agency using the letterhead of an ABA entity or
      referencing an ABA entity’s involvement.
   f.Copies of the transmitted letter and comments must be                      Deleted: d
      contemporaneously sent to (i) the Secretary of the Association in
      care of the Policy Administration Division at the American Bar



                              6
      Center, Chicago, Illinois; and (ii) the Director of the Governmental
      Affairs Office, Washington, D.C.                                       Deleted: The comments when
                                                                             submitted to these ABA entities must
                                                                             be accompanied by a certification,
5. The Office of the Secretary and the Governmental Affairs Office will      signed by the section chair, that the
                                                                             comments have been reviewed and
   make periodic reports to the Operations Committee regarding the           approved by the section leadership as
   implementation of the grant of authority.                                 technical comments within the
                                                                             section’s primary or special expertise
                                                                             and jurisdiction.
                                                                             Deleted: 6. Technical comments
Detailed guidelines for the submission of blanket authority requests are     submitted pursuant to this Section D
                                                                             shall continue for a period of two (2)
available upon request to the Division for Policy Administration.            years.¶
                                                                             ¶
                                                                             7
                                                                             Deleted: .
                                                                             Inserted: .




                             7
                       AMERICAN BAR ASSOCIATION

              SECTION OF SCIENCE & TECHNOLOGY LAW
            AMERICAN IMMIGRATION LAWYERS ASSOCIATION


                             RECOMMENDATION


RESOLVED, That the American Bar Association supports efforts to establish
new visa policies and procedures to enhance and bolster homeland and national
security.

FURTHER RESOLVED, That the American Bar Association supports a more
efficient and more transparent visa system that promotes international scientific
and scholarly exchange and cooperation, thereby further enhancing homeland
and national security.

FURTHER RESOLVED, That the American Bar Association urges the United
States Congress and the Departments of State and Homeland Security to take
steps to ensure that the visa issuance process is adequately funded, more
efficient, and more transparent.
                                           REPORT

        Since the Cold War, federal law has imposed restrictions on the export of
science and technology related to specific military uses, primarily nuclear
weapons. These limits include restrictions on the issuance of certain visas.
Restrictions have also been implemented to curb abuse of student visas by
terrorists.

       This resolution supports the basic philosophy behind these restrictions:
that certain scientific and technical knowledge may pose a threat to the United
States if exported abroad. In practice, however, this laudable goal has had and
continues to have a significant unintended consequence – one that may actually
weaken our national security by creating barriers to the participation of the United
States in the international scope of scientific research.

       International cooperation is essential in science. Many advances we now
take for granted were the result of international communication and joint research
between United States and foreign scientists: “Science is a collaborative
enterprise. Advances are rarely made by lone geniuses in ivory towers; instead
they are the fruit of co-operation by scholars of all nationalities.”1

        Such international cooperation occurs at many levels requiring visas, from
the training of graduate students, which may take many years, to participation in
scientific meetings, which may only last a few days. Colleges and research
universities in the U.S. have traditionally been international. In 2000, 36 percent
of all graduate students in science and engineering fields held visas.2

      The tension between these two goals -- international exchange and
national security -- was recognized on October 29, 2001, by President Bush in
Homeland Security Presidential Directive 2, which states:

        The United States benefits greatly from international students who
        study in our country. The United States Government shall continue
        to foster and support international students. The Government shall
        implement measures to end the abuse of student visas and prohibit
        certain international students from receiving education in sensitive
        areas, including areas of study with direct application to the
        development and use of weapons of mass destruction. The
        Government shall also prohibit the education and training of foreign


1
 Alan Leshner, “America Closes the Door to Scientific Progress,” Financial Times, U.S. edition,
May 30, 2003, p. 15.
2
 “Fear of ‘Foreigners” May Slow Scientific Progress,” June 6, 2003,
http://www.aaas.org/news/releases/2003/0606xeno.shtml, citing a survey by the Commission on
Professionals in Science and Engineering.
          nationals who would use such training to harm the United States or
          its Allies.3

After the World Trade Center bombing in 1996, Congress mandated an
automated foreign student tracking system, but implementation of this system
was slow.4 After the attacks of September 11, 2001, the USA Patriot Act
required implementation of the SEVIS system (Student and Exchange Visitor
Information System).5 In addition, visa application review under the existing
MANTIS system has been broadened, as discussed below, and an additional
layer of review (CONDOR) created to identify potential terrorists.6

      Unfortunately, the current visa review process is lengthy and
cumbersome. The problem arises in part from the more extensive review (under
the MANTIS system) now required of applicants proposing to study sensitive
science or technology. Review under MANTIS is triggered by an applicant
expressing an intent to study a topic listed on the “Technology Alert List.” With
concern over biological and chemical weapons, this list now includes a wide
range of scientific disciplines. As the Department of State acknowledges,

          The technology used to produce chemical and biological weapons
          is inherently dual-use. The same technologies that could be applied
          to develop and produce chemical and biological weapons are used
          widely by civilian research laboratories and industry; these
          technologies are relatively common in many countries.7

For example, in the biological area, consular officials are instructed to look for,
among other interests:

          -- Biochemistry
          -- Pharmacology

3
 John Marburger, Director, Office of Science and Technology Policy, Executive Office of the
President, remarks delivered at AAAS Science and Technology Policy Colloquium, April 10,
2003, http://www.ostp.gov/html/jhmAAASvisa.pdf (as of July 12, 2004).
4
  John Marburger, Director, Office of Science and Technology Policy, Executive Office of the
President, remarks delivered at AAAS Science and Technology Policy Colloquium, April 10,
2003, http://www.ostp.gov/html/jhmAAASvisa.pdf (as of July 12, 2004).
5
 John Marburger, Director, Office of Science and Technology Policy, Executive Office of the
President, remarks delivered at AAAS Science and Technology Policy Colloquium, April 10,
2003, http://www.ostp.gov/html/jhmAAASvisa.pdf (as of July 12, 2004).
6
 John Marburger, Director, Office of Science and Technology Policy, Executive Office of the
President, remarks delivered at AAAS Science and Technology Policy Colloquium, April 10,
2003, http://www.ostp.gov/html/jhmAAASvisa.pdf (as of July 12, 2004).
7
    http://travel.state.gov/state147566.html (as of July 12, 2004).
          -- Immunology
          -- Virology
          -- Bacteriology
          -- Mycology
          -- Microbiology
          -- Growth and culturing of microorganisms
          -- Pathology (study of diseases)
          -- Toxicology8

In the chemical area, consular officials are instructed to look for, among other
interests:

          -- Organo-phosphate chemistry
          -- Neurochemistry
          -- Chemical engineering
          -- Chemical separation technology
          -- Pesticide production technology
          -- Pharmaceutical production technology
          -- Chemical separation technology
          -- Toxicology
          -- Pharmacology
          -- Neurology
          -- Immunology9

       Not surprisingly, the result has been a vast increase in the review of visa
applications under MANTIS. In 2000, about 1,000 cases were reviewed under
MANTIS. In 2002, the number reviewed under MANTIS was 14,000, a 14-fold
increase in just two years.10

         These delays may already be having an impact not only the ability, but
also the desire, of foreign students to study and learn in the United States. A
survey comparing applications by foreign students for fall 2004, as compared
with fall 2003, showed a decline in applications at 47% of the institutions of
higher education that replied to the survey. Of those who were doctoral/research
institutions, 59% reported a decline in applications. Respondents included 19 of
the top 25 institutions that enroll the most international students. Of these 19, all
reported a decline in applications.11 Prior to September 11, 2001, approximately

8
    http://travel.state.gov/state147566.html (as of July 12, 2004).
9
    http://travel.state.gov/state147566.html (as of July 12, 2004).
10
  John Marburger, Director, Office of Science and Technology Policy, Executive Office of the
President, remarks delivered at AAAS Science and Technology Policy Colloquium, April 10,
2003, http://www.ostp.gov/html/jhmAAASvisa.pdf (as of July 12, 2004).
11
  American Council on Education, Association of American Universities, Council of Graduate
Schools, MAFSA: Association of International educators, National Association of State
75,000 institutions were certified to admit foreign students; as of May 2003, only
8,000 were certified.12

       Numerous international scientific organizations have undertaken detailed
studies of this problem. In May 2004, 33 major scientific and academic societies,
including the American Association for the Advancement of Science (“AAAS”),
issued a joint statement summarizing these concerns and proposing specific
recommendations.13 Earlier, in October 2002, the International Council for
Science noted:

        [T]he United States is implementing security measures that make it
        more difficult for scientists from particular nations to receive travel
        visas for scientific workshops in a timely manner. . . . ICSU is
        committed to ensuring that individual scientists recognize the
        responsibilities associated with the rights outlined in the principle of
        Freedom in the Conduct of Science. . . . ICSU’s statement on
        freedom in the conduct of sciences covers three critical areas:
        freedom to pursue science and to publish the results; freedom to
        communicate amongst scientists and to disseminate scientific
        information; and freedom of movement of scientific materials.14

        This resolution accomplishes three major objectives. First, it
acknowledges the need for taking measures to ensure national security.
Second, it acknowledges the benefits of international scientific cooperation.
Third, it urges improvement in the current visa system.

        Examples of improvements that have been proposed include:

        1.      Eliminating repetitive security checks that cause lengthy visa
                issuance delays, by extending the validity of visa security
                clearances for international students, scholars, and scientists from


Universities and Land-Grant Colleges, “Survey of Applications by Prospective International
Students to U./S. Higher educational Institutions,”
http://www.nafsa.org/content/PublicPolicy/Forthe Media/appssurveyresults.pdf (as of July 12,
2004).
12
  John Marburger, Director, Office of Science and Technology Policy, Executive Office of the
President, remarks delivered at AAAS Science and Technology Policy Colloquium, April 10,
2003, http://www.ostp.gov/html/jhmAAASvisa.pdf (as of July 12, 2004).
13
   See, for example the issue brief by the American Association for the Advancement of Science
at http://www.aaas.org/spp/post911/visas/index.shtml (as of July 12, 2004).
14
   International Council for Science, “Freedom in the conduct of science: ICSU examines current
issues around the globe,” Oct. 10, 2002, http://www.eurekalert.org/pub_releases/2002-10/icfs-
fit101002.php.
                 the current 1-year period to the duration of their course of study or
                 academic appointment;

         2.      Eliminating lengthy and inefficient visa renewals, by establishing a
                 timely process by which exchange visitors holding F and J visas
                 can revalidate their visas, or at least begin the visa renewal
                 process, before they leave the United States to attend academic
                 and scientific conferences, visit family, or attend to personal
                 business; and

         3.      Increasing the transparency and priority processing in the visa
                 system, by creating a mechanism by which visa applicants and
                 their sponsors may inquire about the status of pending visa
                 applications and by establishing a process by which applications
                 pending for more than 30 days are given priority processing.15

        The current delays and lack of transparency in the visa process are
depriving the United States of the “best and brightest” minds of non-US scholars,
students, researchers, and teachers – not only in academia, but also in industry.
Multinational companies, in particular, are adversely affected, because they are
increasingly discovering that meetings need to be held outside the United States
to tap their best talent (often at increased cost and effort), and even then those
employees who are in the United States on visas face difficulties in attending
because the process for re-entering the United States is so uncertain at best.

        The net effect is to undermine, rather than strengthen, the long- and
short-term interests of the United States. The problem is reaching crisis
proportions, and the federal government needs to respond promptly to avoid
deepening an already deteriorating situation. This resolution urges the federal
government to do so, and to do so in the name of increasing security, rather than
at the expense of security.




15
     These examples are taken from the May 2004 AAAS position paper cited above.
                       GENERAL INFORMATION FORM

Submitting Entity:          Section of Science & Technology Law

Submitted By:               Ivan K. Fong, Chair-Elect

   1. Summary of Recommendation(s).

      This recommendation supports policies to enhance homeland and national
      security and efforts to establish new visa policies and procedures to
      bolster security. The recommendation also calls upon Congress and the
      Administration to take steps to ensure that the visa issuance process is
      adequately funded, less cumbersome, and more transparent.

   2. Approval by Submitting Entity.

      The Section of Science & Technology Law approved on July 16, 2004.

   3. Has this or a similar recommendation been submitted to the House or
      Board previously?

      No.

   4. What existing Association policies are relevant to this recommendation
      and how they be affected by its adoption?

      None.

   5. What urgency exists which requires action at this meeting of the House?

      The current visa issuance process is causing numerous unintended
      consequences detrimental to science, higher education, and the Nation.
      In particular, visa-related problems are discouraging and preventing the
      best and brightest international students, scholars, and scientists from
      studying and working in the United States, limiting the free-flow of
      international scientific exchange and collaboration and harming the ability
      of the United States to maintain its present scientific and economic
      leadership position. Congress and the Administration need to act urgently
      to correct these serious problems to ensure that the United States has a
      visa system that promotes both science and security.

   6. Status of Legislation. (If applicable.)

      A bill aimed at reducing the processing time and improving the efficiency
      of Visas Mantis security checks was introduced May 17, 2004 in the
      House of Representatives by Rep. Michael Capuano (D-MA). The new
   legislation, “Furthering Education and Research through Mantis
   Improvements Act” (FERMI) (H.R. 4373), addresses many of the visa
   concerns raised by the higher education and scientific communities,
   specifically the issue of Visas Mantis.

7. Cost to the Association. (Both direct and indirect costs.)

   None.

8. Disclosure of Interest. (If applicable.)

   Not applicable.

9. Referrals.

   The recommendation has been referred to the following ABA entities:
         Section of Administrative Law
         Section of Individual Rights & Responsibilities
         Section of International Law
         Commission on Immigration Law, Policy, Practice and Pro Bono
         American Immigration Lawyers Association

10. Contact Person. (Prior to the meeting.)

   Ivan K. Fong
   GE Vendor Financial Services
   10 Riverview Drive
   Danbury, CT 06810
   Tel:         (203) 749-6598
   Fax:         (203) 749-4534
   E-mail:      ivan.fong@ge.com

11. Contact Persons. (Who will present the report to the House.)

   Ellen Flannery                             Scott Partridge
   Covington & Burling                        Baker & Botts, LLP
   1201 Pennsylvania Ave., N.W.               910 Louisiana St., 35th Floor
   Washington, DC 20004                       Houston, TX 77002

				
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