A report from the ABA’s Midyear Meeting in The Big Easy

Earlier this month, I participated in the American Bar Association’s Midyear Meeting in New Orleans. Aside from the obvious benefit of being in a great location I’ve never been to before, the meeting was a perfect example of some of the benefits of being active in the bar.

Of course, there were excellent CLEs and panel discussions. Not only did I attend an educational event put on by the ABA Criminal Justice Section, but I also participated in one at Tulane Law School.

There, I had the honor of discussing careers in criminal justice alongside a sitting U.S. District Court judge and the U.S. Attorney for the Eastern District of Louisiana, which gave me an opportunity to learn and to hopefully impart something helpful to a room full of law students.

The ABA meetings are also an opportunity to recognize those attorneys and judges who are doing great things nationally and back in their home states. A member of Maryland’s delegation was awarded as a finalist for the ABA National Outstanding Young Lawyer Award. Recognitions such as these are important not only for the recipient but also for those in attendance as inspiration to do better in our profession and communities.

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Biden’s ‘American exceptionalism’ and the rule of law

My old boss, Vice President Joe Biden, weighed in on “American exceptionalism” during a speech Monday. In subscribing to the idea, the former chairman of both the U.S. Senate Judiciary and Foreign Relations committees provided the unique perspective that our exceptionalism is particularly demonstrated by our “deep commitment to the rule of law.” I think he’s got a good point. And, I think it’s notable how his view was shaped.

Biden, a lawyer, is as aware as anyone of the importance Americans place on the rule of law at home and abroad. He presided over some of our nation’s most controversial judicial nominations and later, as the Senate’s point man on foreign affairs, met with countless leaders from  different countries, territories and international organizations while pushing President Bill Clinton and the United Nations to punish rulers who flouted the rule of law.

Our own commitment to the rule of law was demonstrated to the world during the 2000 presidential election in which we accepted the Supreme Court’s decision in Bush v. Gore. Without a coup, civil war or violent rioting in the streets, the public and the losing candidate moved beyond the controversy because of respect for the rule of law and the greater good of the nation.

The respect may be especially profound to those entrusted with determining the rule of law in specific cases. It is a topic of Justice Stephen Breyer’s recent book and a favorite subject of Maryland Court of Appeals Chief Judge Robert M. Bell.

When speaking to youth about the judiciary and separation of powers, Bell often laments the court’s status as the weakest branch of government. With the legislature possessing the power of the purse and the executive having the power of the sword, the courts have only the power left to it by the willingness of the public to accept its judgments. The fact that we regularly do is truly exceptional.

Talk of American exceptionalism often seems tinged with arrogance, and this perception can be counterproductive when trying to collaborate with foreign governments. But I think Biden’s perspective gives us something to be very proud about when comparing ourselves to the rest of the world and something both sides of the political spectrum can embrace.

Remembering Muhammad Ali’s legal fight

Today, Jan. 17, Muhammad Ali turns 70 years old. Of course we know Ali as one of the best athletes of all time. But history’s greatest boxer and most prolific hype man was more than mere physical talent and boastful, colorful rhetoric. So awesome were his accomplishments in the ring that his fights outside the ring rarely get attention.

More went on in 1971 for Ali than “The Fight of the Century”; that year he was also fighting for religious freedom and his principles against the Vietnam War. Four years earlier, Ali refused the draft as a conscientious objector, was almost immediately stripped of his heavyweight title and was convicted of being a draft dodger. Ali knew the risk of his stance and — for a man who knew nothing else at the time but boxing — this was a hefty price to pay.

But clearly, Ali was a fighter inside and outside the ring. In exile from the sport, Ali resorted to speaking engagements at college campuses around the country. Although the reviews were mixed, he added tremendously to the debate about the war and came to symbolize something that transcended boxing.

Ali “helped give an entire people a belief in themselves and the will to make themselves better,” the late Arthur Ashe said. “But Ali didn’t just change the image that African-Americans have of themselves. He opened the eyes of a lot of white people to the potential of African-Americans: who we are and what we can be.”

While gradually able to make his comeback in the ring, Ali nevertheless continued his fight in the court — all the way to the U.S. Supreme Court, where he won. While the court’s unanimous opinion in Ali’s favor was grounded in a technicality, a behind-the-scenes look at the case reveals the true basis of the decision and the court’s inner-workings. The Brethren, co-authored by Bob Woodward and Scott Armstrong, details how the court came to its unanimous decision despite the recusal of Justice Thurgood Marshall.

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Considering the future of legal ethics

The American Bar Association, spurred by globalization and technology, has been holding hearings on potential changes to the legal ethics rules that could affect the practice of law far into the next century.

Naturally, any changes to the ethics and professionalism rules will have more of an impact on younger attorneys. It is important, then, that we weigh in before we’re saddled with vague or Luddite-inspired rules that may be interpreted by a judiciary with the “technological heebie-jeebies.”

Historically, the ABA and Maryland have had an important role in the development of legal ethics. Today’s rules date back to 1836 and Maryland law school Professor David Hoffman’s “A Course of Legal Study 2nd ed.” This book paved the way for state bar associations that promulgated ethics rules for lawyers with enforcement mechanisms.

Alabama’s 1887 “Code of Ethics” served as a model for other states, including Maryland and the ABA. In 1908 the ABA adopted an aspirational “Canons of Professional Ethics” that was replaced by the “Model Code of Professional Responsibility” in 1970. Later, in 1983, the “Code” was replaced by the ABA’s “Model Rules of Professional Conduct” (MRPC), modeled today by Maryland and many other states.

In Maryland, the Court of Appeals’ Standing Committee on Rules of Practice and Procedure now considers and recommends changes to the state’s rules and gives considerable weight to ABA policy, often adopting them verbatim.

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In defense of taking time off during the holidays

In response to Cara’s “In praise of working during the last week of the year,” I, respectfully, dissent. This is a perfect time to enjoy family and friends and to reenergize yourself for the upcoming new year.

Sure, most offices are nearly vacant during the last week of the year, and it can be prime time to catch up on work and clean up the office. So if you’re going to get stuff done, that’s great. But don’t stay too long.

However, if you’re really not going to do any actual work, then your time is best spent away from the office catching up in person with old friends and family. Odds are, they’re probably taking some time off or at least have shortened work schedules. Why use LinkedIn or Google when you can give a hearty handshake or a warm hug and fellowship over a meal?

Also, forget the holiday party leftovers at the office — they cannot beat your aunt’s holiday party leftovers. And, they might be leftover for a good reason. (Trust me, don’t touch any sweets left at the office overnight after a holiday party.)

Yes, there’s an excellent argument to be made for saving that paid leave for the warmer months. But, that’s also the time when more people are emailing and calling and you’re on “vacation” checking the Blackberry every five minutes.

Taking some time off now is good for you and for your employer. I argue that you should embrace this time of the year, and the last week of the year, as a time to assess, reenergize, and spend quality time with those you love. Then, you can come back in the new year ready to take on all challenges.

Lock out the lawyers

This Christmas day, sports fans will welcome the beginning of an abbreviated National Basketball Association season. The season, much like the National Football League season, was saved from a lockout and protracted litigation — no thanks to some of the lawyers involved who stereotypically seemed only to get in the way of parties who were otherwise desperate to come to an agreement. In the end, it took a lockout of the lawyers in each dispute to get an agreement done.

Execution of a new NFL collective bargaining agreement depended largely on the owners and players agreeing how to split the league’s $9 billion revenue. Other issues included a proposal to extend the regular season, establishment of a salary cap and the implementation of health and safety measures. The owners claimed they were losing money due to player salaries, while the players believed some owners simply wished to renegotiate their own revenue sharing agreements.

Unfortunately, negotiations on a new agreement broke down, the players union decertified and a group of players took the league to court. Most reports seem to indicate a deal was inevitable and a compromise would be worked out. But those same reports indicated lawyers involved in the negotiations were not helping the situation. NFL Players’ Association executive director DeMaurice Smith at one point had to tell lawyers for his side to “stand down.” Both sides eventually made a point of meeting and negotiating “in secret” and without the lawyers in the room.

Litigation in federal court and an appeal to the 8th U.S. Circuit Court of Appeals only frustrated negotiations. A deal was finally reached to save the NFL season, but probably no one would agree that the lawyers helped.

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