ABA considers internal changes

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Emotions run high when slicing up the pie.

Some years, the hot topics at the annual meeting of the American Bar Association’s House of Delegates focus upon the justice system or the practice of law. This year, however, the most emotional and lengthy debates at the two-day meeting in Chicago on Aug. 8 and 9 centered internally, upon the ABA’s governance, and myriad proposed changes to that structure.

The ABA’s Commission on Governance began examining this topic two years ago, in accordance with the ABA Constitution, which requires reviews of the organization’s governance every 10 years. The commission put forth a series of approximately two dozen recommendations, each of which required a two-thirds majority of the 546-member body to pass.

The end result?

The delegates gave a thumbs-down to most of the commission’s ideas. The House of Delegates constricted slightly, while no changes were made to the Nominating Committee. The Board of Delegates grew by only one member, albeit a nonvoting member, and no changes were made with regard to the association officers.

The House of Delegates

The delegates soundly rejected a recommendation from the Governance Commission calling for term limits for all delegates of two consecutive full three-year terms.

Commission member Harry L. Hathaway, of Los Angeles, Calif., said that many delegates are already subject to term limits imposed by their state or local bar associations, and that the proposal would just take that a step further.

Hathaway also characterized the proposal as a way to increase diversity in the ABA’s leadership. Along these lines, he said that a colleague on the commission, Anchorage, Alaska attorney Donna C. Willard-Jones, had written a minority report. "But I was really disappointed in that report. Because as you read through it, here is a woman who has made it in the profession. She’s there. She’s attained everything. And she’s pulled up the ladder." That comment drew hisses from some of the delegates and prompted the House of Delegates chair Stephen N. Zack of Miami, Fla., to ask the delegates to refrain from personal attacks in the debate.

Carrying the day for those opposing term limits was Ohio delegate Kathleen B. Burke of Cleveland, who argued that state and local bar associations, as well as the other entities represented in the House, should be afforded the discretion to make the decision on term limits on their own, on a case-by-case basis.

An issue that sparked another rather intense debate was whether ABA sections and divisions should have at least two delegates in the House of Delegates. Three groups, the Individual Rights and Responsibilities Section of the Young Lawyers Division, the Public Contracts Section and the Government Lawyers Division currently have only one delegate. Of the delegates that voted on the issue, 303 votes were needed to get the required majority for passage; 317 yes votes came in, resulting in the proposal’s narrow passage.

However, a related measure that called for increased representation of sections, so that the maximum number of delegates a section may have would be raised from four to five, was rejected.

The final proposal that generated controversy was one that would decrease from five to four the number of state and local bar delegates that triggers the requirement to certify a young lawyer delegate. Currently, the proposal affects only two states: Oregon and Kentucky. It would not create or remove seats in the House, but rather, it would simply ensure that more young lawyers hold seats.

Kentucky delegate Charles E. English of Bowling Green spoke against the idea, noting that it did not comport well with his state’s status as an integrated bar; essentially it would be the ABA telling his state’s high court what it must do with regard to its rules on ABA delegates.

But commission member Laura Viviana Farber, of Pasadena, Calif., pointed out that currently, just six percent of the House consists of young lawyers — yet the ABA’s Young Lawyers Division is one of the most active and largest subsections of the association, making up approximately 125,000 members of the ABA’s 504,000 members nationwide. This proposal would send a message to those young lawyers that the ABA values their input. The delegates agreed and passed the resolution.

In a related matter, four local bar associations, independent of the commission, asked for the continuation of a grandfathering provision passed by the delegates in 1995, which would allow them to retain seats in the House of Delegates, despite its requirement that a local bar association must have at least 2,000 members to have a delegate.

The delegates rejected their request, thereby eliminating seats for representatives from the Chicago Council of Lawyers, the Detroit Metropolitan Bar Association, and the Lawyers Clubs of Los Angeles County and San Francisco.

The final tally? For now, the House of Delegates will have three new section members, but lost four local bar seats, so it has shrunk by one member.

The Nominating Committee

While there will be more young lawyers in House, youth did not fare as well in another vote, when considering proposed changes to the ABA’s 67-member Nominating Committee, which chooses officers for the association.

Chris P. Jeter, a student at the George Washington University School of Law in Washington D.C. who chairs the ABA’s Law School Division, spoke in favor of a proposal to add a law student to the Nominating Committee. He said that 51,000 of the ABA’s members, or one in eight, is a law student. He emphasized that these are dues-paying members who deserve to be represented on the Nominating Committee. He was joined by ABA past-president Dennis W. Archer of Detroit, Mich., and the immediate past-president, Robert J. Grey Jr. of Richmond, Va., both of whom said that the proposal comported well the ABA’s emphasis on promoting diversity and inclusiveness.

The measure failed.

Similarly, the delegates rejected a Commission recommendation to add a disabled lawyer to the Nominating Committee.

Perhaps the most emotional debate concerning the numerous governance proposals stemmed from the Governance Commission’s recommendation that the number of section representatives on the Nominating Committee be increased to 13. Currently, there are seven spots on the Nominating Committee for section representatives, and since there are 26 ABA sections, the sections rotate when they are on the committee, based upon each section’s size. For some of the smaller sections, that can mean that as many as a dozen years can pass between the years that they have a representative on the committee.

The majority of the Nominating Committee consists of state delegates; 52 of its members hail from the states, plus two territories, and they are selected by the ABA members within each of those states and territories.

Commission member Joseph D. O’Connor of Bloomington, Ind., began the hour-long debate by characterizing the proposed increase as modest. Should it pass, states would still occupy approximately 70 percent of the seats on that committee.

His colleague on the commission, Willard-Jones, opposed the resolution. She explained that she had run for office in the ABA previously, and as a small-firm lawyer, she found it difficult to muster the time and resources needed to court votes among all of the committee’s members. The addition of six members might not sound like much, unless you’re the one who has to do the campaigning.

Stephen A. Saltzburg, the representative of the Criminal Justice Section from Washington D.C., favored the resolution, but he also chastised the delegates for the tone and substance of the debate:

"Not a single thing that we do today or tomorrow will dramatically change the American Bar Association. Whether you defeat or approve the recommendations that are there, it’s not going to change this organization. Anybody who tells you it will is not telling the truth. What matters here is that we’ve become divided… It’s state and local bars against sections. It needn’t be that way," he said. He added that, on governance issues, the tendency is for delegates to vote in their own self-interests, and that’s why creating independent commissions to de-politicize the process is a wise idea. He further suggested that the association’s great debates should not be on issues of governance, but rather, on substantive law issues that affect the public.

It’s not entirely a matter of pitting sections versus states, countered Madison, Wis. delegate Daniel W. Hildebrand. He echoed Saltzburg’s assertion that, "We’re all in this together," but added that he believes no one is acting out of self-interest or in disregard of what’s best for the ABA as whole. There are reasonable arguments on both sides. Ultimately, he fell in favor of the status quo because it seemed to be working well. A sizeable number of respondents in an ABA survey had indicated that the Nominating Committee is already too big. And, considering the ethnic and gender diversity of several ABA officers in recent years, a rules change designed to increase diversity by adding more section representatives isn’t warranted.

The proposal was defeated.

Board of Governors and Officers

Just as sections did not gain ground in the Nominating Committee, the delegates rejected a proposal to increase the number of section representatives on the Board of Governors. Opponents of the idea emphasized that the 40-member Board of Governors is already too big.

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The Commission additionally proposed that the seat for the association’s immediate past-president be removed from the Board of Governors. The delegates nixed that idea as well.

However, the law students were vindicated somewhat. The delegates approved a measure to add a Law Student Division representative to the Board of Governors as a non-voting member for a two-year term.

With regard to proposals affecting ABA officers, the delegates rejected a restriction upon officers so that they can serve in only one office. Former ABA president and former chair of the House of Delegates Phillip S. Anderson, of Little Rock, Ark., told the delegates that the chair position is good training prior to ascending to the presidency.

A proposal to shorten the term of service for the ABA treasurer, from four years to two, befell a similar fate.