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SAN FRANCISCO — Even this city’s ubiquitous panhandlers were attuned to the presence of 12,000 attorneys here last week at the annual meeting of the American Bar Association. “How about throwing some pro bono my way?” asked one just outside the entrance to the Moscone Center, where the governing House of Delegates was meeting. He got laughs but few quarters. An ABA meeting develops its own culture and rhythm, and 2007′s appeared generally upbeat. The association and the profession seemed in better shape than in the past, though there is some anxiety over aging demographics. The 546-member House of Delegates has always been mainly a sea of white males with gray hair and pinstriped suits, but now it is leavened with graying women and minorities as well. The House endorsed a resolution urging law firms to abolish mandatory retirement rules for partners on Aug. 13, and more than one of the proponents confessed that there was some self-interest at work. Meanwhile, new ways were sought to make the association relevant to young members, with an emphasis on public service, a balanced lifestyle, and families. A Supreme Court coloring book published by the ABA was a hit at the association’s expo, apparently aimed at seeding the next generation of lawyers. Bar leaders sported buttons that read, “Not Your Father’s ABA.” Following are some vignettes from the meeting. RECORD RELEASE PARTY A controversial proposal that urged sealing records of certain past criminal convictions and arrests was pulled from the agenda of the association’s House of Delegates meeting Aug. 11. The proposal, offered by the ABA’s Commission on Effective Criminal Sanctions, was aimed at making it easier for convicted people who have served their time, and for those whose arrests never led to a conviction, to gain employment and housing without the stigma of past records that can be found in online databases and elsewhere. “A criminal conviction is, in a very real sense, a mark of Cain which sets its bearer permanently and indelibly apart from the rest of the society,” the commission said in a report to the House. The commission wanted the ABA to favor legislation at all levels, “to the extent permitted by the First Amendment,” to restrict access to records of dismissed or acquitted indictments, and records of past convictions after a period of time, to law enforcement agencies only. But news media organizations protested that the proposal would seal off from the public a significant segment of public records that are important in holding law enforcement agencies accountable for past arrests and investigations. Perhaps more significantly, business groups chimed in recently in opposition to the proposal, because they seek this same information in connection with background checks. Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, who led the media group objecting to the proposal, applauds the withdrawal but says the matter should have never gotten as far as it did. She says media groups had tried for months to discuss the proposal with the commission, but “we were written off as whining media people.” It was not until business groups also raised red flags that the commission paid attention, she says. George Washington University Law School professor Stephen Saltzburg, chairman of the commission, says the proposal was withdrawn so the group could go back to the drawing board in search of a new proposal that will gain broader support. “Most people understand the problem. We just can’t find the solution that works for everybody,” he said in an interview Sunday. “But we haven’t given up.” He also defended the commission’s deliberative process: “We listened to everybody.” [Note: Tony Mauro is a member of the steering committee of the Reporters Committee for Freedom of the Press.] BASHING THE BUSHIES The House of Delegates showed no reluctance in approving resolutions critical of Bush administration legal policies. One resolution advocated change in how courts handle government assertions of the “state secrets” privilege in civil litigation. The ABA’s Individual Rights and Responsibilities Section advanced the resolution, concerned that the Bush administration’s invocation of the privilege was leading courts to dismiss cases prematurely without examining the validity of the assertion. The claim is a long-recognized common law privilege that allows the government to shield national security information from public disclosure. The Bush administration has invoked the privilege in a series of cases, including pending litigation over the National Security Agency’s warrantless wiretapping of communications. The resolution would not restrict the government’s assertion of the privilege but would require a “judicial assessment” of the legitimacy of the claim before any decision to dismiss the case is made. The House also endorsed, without opposition, a resolution urging Congress to pass legislation that would supersede President George W. Bush’s July 20 executive order on the treatment of detainees in the current conflicts in Iraq and Afghanistan. The delegates were told that the executive order amounted to a grant of power to the CIA to engage in “cruel and abusive practices.” The legislation proposed by the ABA would ensure that foreign detainees are treated according to the Geneva Conventions of 1949. Attorney General Alberto Gonzales’ firing of nine U.S. attorneys also came under criticism. The delegates passed a resolution stating the view that the hiring and firing of U.S. attorneys and career government lawyers should not be influenced by political considerations. HONORING THE MAJORITY AND MINORITY As unhappy as he was about being on the losing side in so many cases last term, Supreme Court Justice Stephen Breyer said Aug. 11 his faith in the legal system and the rule of law is undiminished. “I had a difficult year,” Breyer said before the ABA meeting’s opening assembly. “I was in dissent quite a lot, and I wasn’t happy.” With Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. on the Court, conservatives won almost all the 5-4 opinions last term, leaving Breyer often in the minority. The nation is one of “300 million people and 600 million opinions,” Breyer added, saying that his can’t be in the majority all the time. What makes him still proud of the system is that disputes over race and other emotional issues are worked out “in the courts, not in the streets.” Breyer made the personal observations to underscore his charge to the lawyers to spread the word about judicial independence and the rule of law. Even when the Court makes unpopular decisions, Breyer said, the nation abides by them. In the Florida 2000 presidential election case of Bush v. Gore, Breyer noted, “there were no paratroopers, no rocks. . . . People accepted it.” But the story of the American legal system needs to be told and retold, Breyer said, because it “floats on the sea of public acceptance.” He said he worries that the busy general public does not see that it has a direct stake in the preservation of an independent judiciary, which contributes to economic stability and the protection of minorities. The message needs to be transmitted to the next generation, Breyer said. Breyer received a standing ovation, as he did earlier in the day when he was given the association’s “Rule of Law” award for his efforts to promote international understanding of the need for strong legal systems. In an emotional address two days later, Supreme Court Justice Anthony Kennedy implored lawyers to constantly re-examine their conduct to be sure they exemplify principles of justice and fairness and advocate for the rule of law around the world. Kennedy, 71, received the ABA’s Medal of Honor, its highest award, for a career of advancing the rule of law and advocating for improvements in the profession and administration of justice. Nearing his 20th anniversary on the nation’s highest court, Kennedy recalled his early days as a lawyer and choked up as he thanked his family for supporting his career. In a reference that could be taken as a defense of his own work, Kennedy told the assembled House of Delegates that lawyers “must never cease asking, �Why am I doing this? What inner voice is telling me to decide the case this way?’” Such introspection, he said, “is not indecision — it is fidelity to your oath.” Especially on the newly configured Roberts Court, Kennedy is a crucial swing vote, and his agonizing and occasional vote switches are legendary. Kennedy said the association and the profession should be proud of their role in advancing justice worldwide. “The American lawyer has an honored place in the history of human progress,” Kennedy said. But worldwide, he said, the legal system Americans take for granted is unknown to millions. If American lawyers don’t spread legal principles around the world, Kennedy said, “the rule of law and our freedom is not secure.” FROM MICROSOFT TO THE ABA ABA veterans remember well the youthful leader of the young lawyers’ division 30 years ago, a man with a shock of dark hair and dreams of changing the profession. Now, with his hair decidedly white, William Neukom, a partner with Kirkpatrick & Lockhart Preston Gates Ellis in Seattle and former vice president of law and corporate affairs at Microsoft, took the helm of the association Aug. 14. And Neukom, 65, says he wouldn’t be doing it if he had not seen the association and the profession become more oriented toward public service. “I wouldn’t have been interested in the job,” Neukom says, if the ABA hadn’t become “a clearinghouse, an engine,” for change. Neukom’s signature initiative for the coming year is the World Justice Project, an effort to broaden and strengthen the ABA’s recent focus on the rule of law. And in spite of its name, it will have a substantial domestic component, aimed at making it clear to all segments of American society that they have a stake in strong legal and judicial institutions. “It’s not just lawyers meeting for a gabfest on the rule of law,” Neukom says. Meetings across the country have already paved the way for multidisciplinary meetings set nationwide for May 1 — the 50th anniversary of Law Day. Neukom wants lawyers to meet with doctors, educators, business leaders, and others to establish a consensus about the importance of the rule of law and judicial independence. With the help of a $1.8 million grant from the Gates Foundation, Neukom says the project will also support scholarly efforts and development of a rule-of-law “index” that will assess how strongly the United States and other nations adhere to the rule of law. “The rule of law,” he says, “is not the rule of lawyers.”
Tony Mauro can be contacted at [email protected].

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