Professionalism issues were at the forefront of the American Bar Association’s 2023 (ABA) Midyear Meeting, which took place earlier this month in New Orleans.
More than 30 resolutions were considered, covering a myriad of topics from condemning antisemitism to guidelines regarding the use of artificial intelligence in the legal profession.
Notably, many of the resolutions addressed professionalism in the legal profession.
How the ABA Midyear Meeting works
As the largest voluntary association for lawyers in the world, the ABA’s mission is “to serve equally our members, our profession and the public by defending liberty and delivering justice as the national representative of the legal profession.”
Control and administration of the ABA is vested in the House of Delegates, the association’s policy-making body. The House is made up of 591 members, including state and local bar association delegates, former ABA officers and board members, and ABA section and division delegates.
The House meets twice each year—at the ABA Annual Meeting and the ABA Midyear Meeting—and debates resolutions submitted from many sources, such as ABA standing committees, forums, and commissions, and state and local bar associations.
Resolutions passed by the House of Delegates become official ABA policy and serve as focal points for the ABA’s advocacy efforts.
Many of the resolutions that were passed at the 2023 Midyear Meeting have become ABA policy impacting legal professionalism. Four such policies include:
- A code of judicial ethics for the justices of the U.S. Supreme Court
- The status of law school admission tests
- Guidance on LGBTQ-inclusive language
- Principles to advance gender equity in the criminal legal profession.
1. Code of Ethics for U.S. Supreme Court Justices
One of the most debated policies at the ABA Midyear Meeting was a proposal for a binding code of ethics for U.S. Supreme Court justices.
In an associated report, the King County Bar Association in Seattle, which brought Resolution 400 to the House, explains that while the justices consult the Code of Judicial Conduct for United States Judges and some statutes impose ethical requirements, there is no binding code of ethics for the justices of the U.S. Supreme Court.
And, according to the King County Bar Association, a binding code of ethics will increase the public’s faith in the impartiality and professionalism of the justice system.
Notably, however, the resolution did not posit the development of any sanctions should the code of ethics be violated.
Some members took issue with this and asked that the House postpone voting on the resolution until more discussion could be had on the enforceability. Others urged action saying that the U.S. Congress is discussing the topic and it is important that the ABA has a voice in that discussion.
The House ultimately decided that the U.S. Supreme Court should adopt a binding judicial code of ethics that is similar to the Code of Conduct adopted by the Judicial Conference of the United States.
2. The status of law school admissions tests
Another resolution that led to a spirited debate was removing the LSAT or other standardized test requirements for law school admission.
Resolution 300, which was brought by the ABA’s Section of Legal Education and Admissions to the Bar, called for cutting the test requirement in Standard 503. Both proponents and opponents argued that their position would help improve diversity in the legal profession.
Those in favor of cutting the test requirement said that it would lead to an increase in the diversity of applicants and admitted law students, as some data show that standardized tests may disadvantage underrepresented applicants.
For example, a Law School Admissions Council (LSAC) report showed that scores for Black test takers were 11 points lower than the average LSAT scores for White and Asian test takers.
In the absence of standardized tests, alternative admissions practices could be developed that do not disadvantage underrepresented applicants in the same way.
However, opponents argued that removing the testing requirement would decrease the diversity of the applicants and admitted law students because an objective admissions indicator would be lost.
Ultimately, Resolution 300 failed to pass the House. This is the second time in six years that this resolution has failed.
However, this is not the end of Resolution 300. The legal education council may still push through the change without the House’s approval.
3. Using LGBTQ-inclusive language to eliminate bias
The New York State Bar Association brought Resolution 401 before the House, asking it to adopt a bench card for best practices for judges for “using LGBTQ+ inclusive language and pronouns” in courtrooms.
The bench card demonstrates compliance with recent changes to the ethical and professional rules that govern the conduct of attorneys and judges in New York state.
According to the report accompanying Resolution 401,
“As an ethical matter, permitting a judge to force someone to pick an ill-fitting gender pronoun would make people feel unwelcome, distract from the adjudicative process, and undermine public confidence in the judiciary’s impartiality.”
The House adopted this resolution. An example of the bench card can be seen on pages 5 and 6 of the resolution report.
4. Improving gender equity in the criminal legal profession
The ABA Criminal Law Section asked the House to adopt “Ten Principles for Gender Equity” in criminal law, based on research, experience, and qualitative and quantitative data from women criminal lawyers across the country.
The principles were laid out in Resolution 501 and included recommendations focused on workplace culture, training and mentorship programs, combatting the “flexibility stigma,” and recognizing the impact of trauma and secondary trauma.
The resolution was based on research by the Criminal Justice Section’s Women in Criminal Justice Task Force, which revealed the barriers to hiring, promoting, and retaining women in criminal law.
This resolution was overwhelmingly passed by the House.
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