Legal Education and Admissions to the Bar

Initiatives Under Way in Asia and Africa
Diane C. Yu

The section of Legal Education and Admissions to the Bar, the ABA's oldest section, has been at the forefront of the most significant trends and developments affecting the education and admission of lawyers in the United States. The Council of the Section, supported by the Accreditation Committee and the Standards Review Committee, continues in its key role as the entity responsible for accrediting American law schools via authorization from the Department of Education.

The section is committed to helping the profession meet many pressing and complex challenges including:

What will the practice of law look like in the near future?

o What knowledge, skills and experience will future lawyers need to survive and thrive, and how can law schools and the bar satisfy those needs?

o What will be the impact of technology, including distance learning, on the educational experience of law students?

o How will the profession achieve real diversity among its members?

o What are the international trends in legal education and admissions that U.S. law schools need to address?

The section will tackle several special programs displaying the membership's wide range of interests and the changing environments affecting legal educators and bar examiners. The Law School Development Committee and a special committee on International Legal Education ("Salzburg Revisited") will be planning conferences in their respective areas.

The section, in conjunction with the Association of American Law Schools and the Law School Admissions Council, will also host a conference in October on women and people of color at law schools. Rather than discuss diversity in general, the conference will focus on how to develop, communicate and implement successful and specific action plans to take diversity initiatives to the next level.

Also confronting the section is the trend of America's legal education becoming increasingly influenced by what happens outside its borders. More law schools are running foreign and LL.M. programs, bringing the schools in contact with foreign law professors and students. There are new ABA legal-education-related initiatives under way in Africa and Asia that provide opportunities for law schools to be involved in shaping the legal academy in new democracies. In June 2001, a conference in Istanbul, Turkey, will concentrate on the next quarter century in international legal education.

The section also participated in path-breaking efforts, at the 2000 Dallas Midyear Meeting, to bring together members of the practicing bar, bench and academy to identify and bridge gaps in understanding and cooperation. There are both historical and functional reasons that the legal education community and the practicing bar have had somewhat erratic success in working together on a sustained basis.

The section will build on the progress made in Dallas and look to the National Conference of Bar Presidents, the National Association of Bar Executives and the National Conference of Bar Foundations as continuing allies. Potential subjects range from ways of instilling and strengthening professionalism in new lawyers, creating continuing legal education opportunities, discussing curricula and removing obstacles to meaningful communications and expanding diversity.

Finally, both multidisciplinary practice and multijurisdictional practice issues have significant legal education and bar admissions implications. The section's council, Bar Admissions Committee and other groups will offer input and insights on these timely and controversial topics.

Yu, chair-elect of the Section of Legal Education and Admissions to the Bar, is associate general counsel at Monsanto Co., in St. Louis. She is the former general counsel for the State Bar of California and is the first Asian-American to head a section or division of the ABA.

Litigation

Cost-effective delivery of membership perks
Ronald Jay Cohen

The Litigation Section, the American Bar Association's largest, will focus in 2000-2001 on cost-conscious delivery of membership benefits and the fundamentals of effective advocacy. The section will also continue the tremendous work traditionally performed through its publications, its 50-plus committees, numerous task forces and more than 400 subcommittees.

Many of the special projects initiated by the section in 2000 will focus on cost-effective delivery of membership benefits. Technology permits section members to enjoy continuing legal education (CLE) in their offices, in their homes, on the telephone and in their vehicles. The section's talent will be used to deliver CLE at radically reduced prices to add to the ever-increasing Litigation Section membership benefits. The Litigation Section will also sponsor many CLE activities throughout the country, at midyear committee meetings, at the section's Annual Meeting in Phoenix in May 2001, and at the ABA Annual Meeting in Chicago in August 2001.

The tradition of providing advocacy training to public-service lawyers will be continued and intensified. Six such programs will be conducted in geographical areas where such services are most sought by legal service lawyers. The historic commitment to provide the finest publications to section members, including Litigation Magazine, Litigation Docket, Litigation News, Committee Newsletters, book publications and quarterly dissemination online of practical Tips from the Trenches will also be continued.

The section is also deeply involved in the rulemaking arena. This year, the section will focus on settlement ethics. The section will devote its time to drafting written guidelines for the ethical considerations applicable to representations and positions taken during settlement negotiations. These guidelines will then be presented to the Section Council and the ABA House of Delegates for their review and consideration. Judges and lawyers throughout the country will have these guidelines available for consideration, as litigators continue their efforts to provide cost-effective and efficient dispute resolution.

In May 2001, the section's annual meeting will be held in Phoenix. The presentations will be the most aggressive and far-reaching CLE forum in the section's history. Assembled will be many of America's great teachers of advocacy to share in a renewed look at the fundamentals of advocacy and to reconfirm the section's commitment to trial by jury. At the Phoenix meeting, the section will also honor outstanding female and minority members of the Litigation Section.

Finally, the Litigation Section is committed to taking an introspective look at its structure, organization, policies and procedures. The section will also continue its commitment to diversity in its membership and leadership, as it seeks to fulfill its goal of genuine and total inclusion.

The Litigation Section remains proud of its accomplishments in organization and opportunity. The effort will be accelerated in 2000-2001.

Cohen is chair-elect of the Litigation Section and is a founding partner of Phoenix's Cohen Kennedy Dowd & Quigley

Public Utility, Communications and Transportation Law

Monitoring the Mix of Industry Consolidation
Peter V. Fazio Jr.

The industries and issues on which the ABA's Public Utility, Communications and Transportation Law Section focuses, are as diverse as the name of the section implies. Yet one common denominator stands out: the continued evolution toward consolidation through mergers, acquisitions, joint ventures and strategic alliances. The result is fewer, but bigger and bigger, players. Generally, the strategy behind these deals is to take advantage of the operating efficiencies that come with greater size, and the deals are done among existing companies in each industry.

In the energy/public utilities sector, regulated businesses are seeking to obtain nonregulated subsidiaries, and vice versa-this includes energy producers choosing to become solely energy distributors. There is also a new breed of transaction being undertaken in the energy sector-the "going private" transaction-that could portend future trends for the other industries in the section.

Warren Buffett's Berkshire Hathaway Inc. completed its 75 percent purchase of MidAmerican Energy Holdings Co. earlier this year. Unlike mergers and consolidations among existing companies in the industry, the path to regulatory approval in this deal was made much easier by the fact that the new majority owners have no other energy interests. This could pave the way for other purely financial investment entities to enter the public utilities and energy field. Likewise, in April, TNP Enterprises Inc., the parent of Texas New Mexico Power, was acquired by a private investor group led by William J. Catacosinos, an experienced utility executive, backed by CIBC World Markets and other financial institutions.

Before their sale, MidAmerican and TNP were each publicly traded companies. With the completion of each acquisition, each will morph into privately held entities, with publicly traded fixed-income securities. This contrasts with the more than 32 other major mergers and acquisitions that the section reviewed at its Spring 2000 Council Meeting. All were transacted among publicly-traded companies, and none of these involved going-private transactions.

It will be interesting to see how Berkshire Hathaway, a financial services holding company best known for such subsidiaries as GEICO Auto Insurance, Dexter Shoe Co., See's Candies Inc. and IDQ Cos. (operators of Dairy Queen and others), can perform in the brave new world of "deregulated" energy utilities. Although existing management will remain in place, Buffett's energy is likely to be a powerful influence on the new entity. In TNP's case, Catacosinos will be able to focus on long-term profits, rather than quarterly earnings.

Although the financial results of these acquisitions will have an impact on other financial investors considering similar transactions, the current wave of state and federal government deregulation could contribute to the attractiveness of such investments. At its Spring 2000 Meeting, the section reviewed public utilities deregulation efforts pending in 22 states, and two others pending at the federal level. Among these were congressional bills calling for the repeal of the Public Utility Holding Company Act of 1934, which authorizes the Securities and Exchange Commission to regulate interstate public utility holding companies, the types of securities they issue and how they conduct business.

The section will continue to monitor the ongoing dynamic mix of industry consolidation, new entrants and government deregulation-powerful components in the future of how energy is delivered to the American public.

Fazio, chair-elect of the Public Utility, Communications and Transportation Law Section, is managing partner at Chicago's Schiff Hardin & Waite. He also serves as general counsel at NiSource Inc.

Real Property, probate and trust

Trend Towards More Technology, MDPs?
Dennis Belcher and Phil Bagley

The Section of Real Property, Probate and Trust is split into two divisions: probate and trust law, and real property law. Both divisions face changes in the upcoming year, as a result of several emerging trends.

Four significant trends affecting the probate and trust law division's membership stand out. These are the increase in wealth in the United States during the last decade; the possible repeal of the federal estate and gift tax system; the advent of sophisticated, high technology; and a move toward a multidisciplinary practice.

During the last decade, there has been a significant increase in the wealth of many Americans. With the increase in the accumulation of wealth comes opportunity and challenges for the probate and trust practitioner. These challenges include an increased amount of work and finding enough resources to handle the work and compete with other financial service providers (such as accountants, financial planners, and financial institutions).

The probate and trust practitioner also faces the possible repeal of the federal estate and gift tax laws. During the last session, Congress attempted to repeal the federal estate and gift tax laws over a 9-year period. Although President Clinton vetoed the bill, the repeal of the federal death tax laws would minimize the amount of sophisticated tax planning now required by many clients and require a shift in the practice area.

Technology, which can be a great help to a probate and trust lawyer, is also another challenge. Number crunching, document assembly, keeping track of data, and other time-consuming tasks are all made easier by technology. Technology is also leading to a probate and trust practice becoming commodity work.

The last trend affecting the probate and trust section's membership is the possibility of a multidisciplinary practice (MDP). Assuming we can protect our core values, our members welcome the opportunity to work with other service providers in handling matters for our clients.

On the real estate front, there are also significant trends that affect the practice. Technology, as with probate and trust, has permitted the real estate practitioner to become much more efficient and timely in delivery of legal documentation and communications during certain transactions. These advances, while incredibly helpful, also have some negative by-products, such as the continued standardization of documentation, leaving little room for negotiation within the time constraints of closing deals. Also, the client's knowledge of the swiftness within which documentation can be developed and the expectations of getting the job done rob the real estate practitioner of time to give thought to the documents he or she is producing.

As a corollary to the probate and trust law's move towards MDP, MDP will also significantly affect the real estate practitioner who will be faced with more multi-jurisdictional issues. Historically, real estate law has been viewed to be highly localized. With the advent of a national real estate market, the geographic scope of practice for real estate lawyers will expand.

Another trend affecting real estate practitioners is the increasing and encroaching involvement of government in real estate development, especially through the process of granting permits. Governmental regulation of the environment, particularly in the wetlands area in the eastern part of the United States, is driving developmental costs and time frames increasingly upward, as federal, state and local governments involve themselves (sometimes in overlapping fashion) in these areas.

Another trend in real estate law is the increasing effect of loan interest rates on the life or death of a transaction. The effect of minor changes in interest rates on the decisions of developers and lenders on whether to go forward with transactions is increasing, as the abilities to underwrite transactions and make split-second decisions to offer and lock in interest rates are called for by such parties. One does not get a chance to ponder a loan commitment very long, because of the need for split-second decisions spurred by impending changes in interest rates.

Belcher is vice chair-elect of the Section of Probate and Trust Law. He is a partner at Richmond, Virginia's McGuire, Woods, Battle and Boothe. Bagley, vice chair-elect of the Section of Real Property, is a partner at Richmond, Virginia's Mays & Valentine.

Science and Technology

New Committees to Focus on Web Issues
Bonnie E. Fought

Science, technology and e-commerce are increasingly driving economic growth both domestically and internationally, and as companies and governments alike adopt dramatically different business models, the legal landscape is also being transformed. Communications, computer technology, electronic commerce, biotechnology and the physical sciences are continually in the news, as are the legal and ethical issues spawned by these rapidly evolving areas.

In this period of profound technological and scientific change, the Section on Science and Technology has several key roles: providing a forum to explore new ideas; serving as a clearinghouse for information regarding these issues; and building, developing and shaping the law in these areas.

The explosive growth of the Internet and the associated electronic commerce conducted through this new channel have placed new demands on the infrastructure of electronic commerce to provide seamless transaction processing while preserving privacy and addressing security concerns. Since 1992, the Information Security Committee of the section's Electronic Commerce Division has convened an international group of lawyers and technologists for quarterly meetings to examine many of the new legal issues raised by e-commerce.

This committee broke new ground in 1996 when it released its Digital Signature Guidelines (read them at http://www.abanet.org/scitech/ec/isc/dsgfree.html), the culmination of a four-year project regarding legal issues raised by using public key cryptography to create digital signatures and the related role of trusted third parties. The committee's continuing examination of such issues, including its current project to develop public key infrastructure (PKI) assessment guidelines (which is to provide guidelines for assessing a PKI and to outline the roles of the participants in a PKI) has drawn global participation.

Cloning, stem-cell research and genetically engineered foods have captured the headlines, but these are only a glimmer of what is to come in the biotechnology field. Everyone, not just those working in the biotech industry, will be faced with the consequences of a broad range of scientific research. The ethical and legal questions that accompany the application of genetic testing, genetic manipulation and the development of new drugs, foods and medical treatments through genetic alteration are areas that the section will continue to address.

The section's Committee on Scientific Evidence addresses the legal and evidentiary issues arising from the use of scientific evidence and experts. Recently, the committee published Scientific Evidence Review, Monograph No. 4, which explores current trends in this area.

The Section of Science and Technology established three new committees to address new legal issues that ultimately will be critical to all lawyers. These are the E-Privacy Law Committee (in the Electronic Commerce Division), which will address the daunting privacy issues raised by Web sites and e-commerce; the Internet Governance Committee (in the Computer Law Division), which will focus on issues critical to the operation of the Internet as a basis for commerce and communication; and the Technological Standardization Law Committee (in the Electronic Commerce Division), to address the ever-increasing importance of standards in the commercial world.

Fought, chair-elect of the Science and Technology Section, is the chief operating officer and general counsel of Connectix Corp.

State and Local Government Law

Updating MPC and Amending MRPC

Patrick K. Arey

In June 1999 the section, together with the Rocky Mountain Land Use Institute, sponsored a retreat designed to foster discussion of the diverse views on the law of takings of private property by local governments. The law governing takings of private property for public use is based on the due process clause of the federal constitution. Therefore, most of the law derives from legal proceedings and appeals, and results in different interpretations and precedents that lack detailed guidance for lawyers.

One important area of takings law involves the "ripeness" of claims for court adjudication. Land development is a complex process, involving many reviews and approvals by state and local governments. One line of court decisions currently prevents a land owner from asserting a takings claim in the federal courts until the review and approval process has been completed. Some lawyers believe that this precedent unduly delays or even denies access to the federal courts.

The results of the retreat were released last year in a report that attempted to state a consensus position on this issue as well as other issues. Many interested groups, including the International Municipal Lawyers Association, the Community Rights Council and the American Planning Association submitted extensive comments opposing the report's recommendations. The section took no position on this issue, but welcomes further discussion from all interested parties.

The section also has been actively involved in updating and modernizing the Model Procurement Code under the leadership of former Section Chair Larry C. Ethridge. The section directed special attention to updating the code in view of the extensive use of electronic communications through the Internet. The sponsors of this project expect to present it to the House of Delegates for approval in the near future.

The section also actively supported the report and proposed amendment to the Model Rules of Professional Conduct governing the making of political contributions by lawyers in order to receive or be considered for legal work from state and local governments, known as "pay to play". Working with the Business Law Section and other groups in the ABA, the section achieved passage of this important resolution at the February meeting of the House of Delegates. The section believes that the rule fairly addresses the issue of "pay to play" while protecting the legitimate interests of lawyers who participate in the political process. The rule also provides for an exception when work is awarded through a fair and open bidding process free from political influence.

In recent years, the Securities and Exchange Commission has brought a number of proceedings against local officials and public finance professionals involved in the marketing and sale of government bonds and other obligations. Therefore, in the coming year, the section will be working with the SEC's Office of Municipal Securities to sponsor regular roundtable discussions open to attorneys, municipal finance professionals and government officials involved in the issuance of public debt. The section believes that these roundtables will assist local officials and their advisors to better understand their obligations under the federal securities laws when selling bonds or other forms of debt.

Arey is chair-elect of the Section of State and Local Government Law. He is a partner at Baltimore, Md.'s Abramoff, Neuberger and Linder.

What's Going on at the ABA Part III