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The American Bar Association House of Delegates is expected to take up some contentious issues at the ABA’s annual meeting held this year in Honolulu. But before anyone will have set foot in the sand, some behind-the-scenes controversy has served as a prelude to the events that begin this week. Infighting among the 36,000-member Tort Trial and Insurance Practice Section of the ABA, commonly referred to as TIPS, resulted in the group last week pulling a proposal that was slated for a vote by the House of Delegates, which will hold sessions on Aug. 7 and 8 at the ABA meeting. Proposition 103, a tort-reform measure, created a sharp divide among group members and, at least in one case, between a huge corporate client and its outside law firms. But plenty remains for the House of Delegates to consider during the two-day session, which is just one component of the ABA’s 129th annual meeting. With an expected 8,000 lawyers, judges and legal scholars staying in 18 hotels across the Waikiki area, the five-day event will include 53 vendors, dozens of educational programs and presentations by some top legal minds. Each year, the House of Delegates considers measures that deal with the ABA’s governing rules in addition to more politically charged matters. This year, for instance, it will consider measures to increase law school diversity, appeals of courts-martial and disclosure of law firm pro bono work, among others. The resolutions, representing the official voice of the 400,000-member organization, carry no formal legal weight but can influence the decision-making processes of lawmakers and the judiciary. Proposition 103 concerns One person not attending, however, is James Beck, a mass torts defense partner with Dechert in Philadelphia. He said that since TIPS decided to shelve Proposition 103, he would forgo the 10-hour flight that he would have made to vote against the measure. “Besides, I’m going to Hawaii on vacation later in the month,” he said. “I’m not doing that twice.” What concerned Beck and some other attorneys was a recommendation to the House of Delegates by the 29-member TIPS council, the leadership body of the tort section. The TIPS council, through Proposition 103, called for the ABA to oppose federal agencies’ practice of promulgating rules that pre-empt state tort or consumer laws. Proposition 103 primarily would affect the pharmaceutical and automotive industries. The Food and Drug Administration in January wrote into its preamble language that precludes some state court claims pertaining to the labeling of drugs and devices, including failure-to-warn claims. In addition, the National Highway Traffic Safety Commission is seeking to include pre-emption language that would block some claims related to defective automobile roofs if designs meet new roof-crush standards. The TIPS council does not disclose how specific members vote on initiatives, but Steven Hantler, assistant general counsel for DaimlerChrysler Corp., said he believed that members of the TIPS council who practice with firms serving as outside counsel to the auto giant voted in favor of Proposition 103. His concern is that in voting for the proposition, attorneys were protecting, not their clients’ interests, but their own business interests that could be jeopardized if the reform measure passed. In theory, federal pre-emption would reduce litigation and prompt parties to settle earlier, which would be good for defendants but detrimental to a defense litigator’s bottom line. “I want to find out if there was a principled basis for their vote other than their pocketbook,” Hantler said. He added, “My concern is that this proposition is inconsistent with positions that our company has taken in litigation and adverse to my company and a lot of other regulated industries.” Hantler said he would consider discontinuing the use of those firms’ services if he was unsatisfied with their reasons for voting for the proposition. Some firms with attorneys serving on the TIPS Council include Hunton & Williams of Richmond, Va.; Sonnenschein Nath & Rosenthal; Porter Wright Morris & Arthur of Columbus, Ohio; and Burr & Forman of Birmingham, Ala. Sandra McCandless, chair of TIPS, originally submitted the recommendation to the House of Delegates for a vote on Proposition 103. Last week, she said that the issue needed more deliberation. McCandless is a labor and employment partner with Sonnenschein Nath who mainly represents employers. McCandless said that although her name was on the submission, she was not necessarily in favor of the measure. She said that a lot of paperwork crosses her desk as chair. “I’m not writing these things,” she said. “I’m not sure I know where I stand [on the issue] personally at the moment.” TIPS council members voted to send the measure to the House of Delegates by e-mail, McCandless said, which was a mistake. “I’ve learned that taking votes by e-mail is not the best way,” she said. McCandless said that after the vote took place, some TIPS members voiced their strong opposition to the measure as it was worded, which prompted its withdrawal from the House of Delegates agenda. The 49 propositions that the House of Delegates is slated to consider include the widely publicized measure that would require law schools to demonstrate by concrete efforts that they are taking steps to admit more minority students. Some conservative groups have charged that the standard would require law schools to violate anti-discrimination laws or risk loss of ABA accreditation. In addition, the House of Delegates will consider a proposal to allow the U.S. Supreme Court to review decisions made by the U.S. Court of Appeals for the Armed Forces that deny appeals for courts-martial, and a proposal that would require law firms to disclose their pro bono activities to law schools conducting on-campus interviews. A proposal that demonstrates the ABA’s support for the Darfur, Sudan, peace accord is on the agenda, as well. The keynote speaker for the 2006 annual meeting is U.S. Supreme Court Justice Anthony M. Kennedy. Other notable speakers and panelists include Catherine Crier, Court TV anchor and former Texas judge; Elizabeth Rindskopf Parker, former general counsel of the Central Intelligence Agency and current dean of the University of the Pacific McGeorge School of Law; and John Yoo, professor of law at the University of California, Berkeley School of Law. This year’s expected attendance is about 20% lower than last year, when the annual meeting was held in Chicago, said an ABA spokesman.

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