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The legal rights of accused al-Qaida terrorists and further amendments to the Rules of Professional Conduct will be the chief topics discussed by the American Bar Association House of Delegates, who will descend upon Philadelphia Monday as part of the ABA’s annual midyear meeting. The House last met in August, less than a month before the tragic events of Sept. 11, and the imprints of the worst act of terrorism in world history can be plainly seen in its agenda. Robert Weinberg, a delegate from the Bar Association of the District of Columbia, is scheduled to present a resolution supporting President Bush’s call to “bring to justice the perpetrators of global terrorism and those who harbor them or give them aid.” But the president of the D.C. Bar Association, J. Gordon Forester, will present a much more controversial report to the House. The D.C. Bar Association is asking the ABA to adopt its views on the legal rights of accused terrorists, many of whom were recently brought to a U.S. military base in Guantanamo Bay, Cuba. The three-prong recommendation supports Bush’s Nov. 13 military order authorizing the trial of non-U.S. citizens accused of committing terrorist acts before military commissions, provided: � All proceedings meet the requirements of fundamental fairness as generally recognized both in the United States and among its principal allies in the fight against terrorism; � The yet-to-be-adopted rules for the proceedings conform to the rules and procedures applicable to military courts-martial conducted pursuant to the Uniform Code of Military Justice; and � The trials conducted are made subject to review by an appropriate independent civilian reviewing authority designated by the president, with the authority to approve, disapprove or modify findings and sentence. Grant Lattin, chair of the D.C. Bar Association’s military law committee, said the group had some immediate concerns with the president’s Nov. 13 order, fearing the possibility of secret trials and defendants with no legal representation. Bush also left setting the procedures for the trials in the hands of Secretary of Defense Donald Rumsfeld, who has yet to release any guidelines. “We felt we had to get something out quickly to have some influence,” said Lattin, a solo practitioner from Woodbridge, Va. “We sent copies to the White House and the Secretary of Defense in hopes that they will recognize that it’s important to adopt procedures that guarantee fair trials. “We support the president in his fight against terrorism and I just don’t want to see a kangaroo court and I don’t think we will. We’re just asking for the same protections as those in a court-martial, and we are hoping the moral authority of the ABA will help to make sure these tribunals are fair. After all, what we’re really talking about here is how we would want our own people to be treated when they get captured.” Lattin would like to see “fundamentally fair” proceedings that are open to the public, save for the consideration of classified information where defendants have the right to counsel and to examine and cross-examine witnesses. In addition, the appointed review board would make sure those procedures were implemented during the post-sentencing phase. He said he is aware that this particular president has not shown much interest in the ABA’s opinions on anything, as Bush shut the organization out of the process of nominating judges to the federal bench last year. And he said he acknowledges there are some Americans, especially those who lost loved ones Sept. 11 and during the war in Afghanistan, who are not particularly concerned about the rights of accused members of al-Qaida. “This just asks the president to take the moral high ground and support the rule of law, not the rule of emotion,” Lattin said. “I believe the president can accomplish exactly what he wants by following the rule of law. And this all might be much ado about nothing if [Rumsfeld] enacts the procedures that are similar to court-martials.” As for the House of Delegates debate on the subject, Lattin said he expects to see several amendments offered. Bar associations in New York City and Philadelphia have adopted similar resolutions, and Lattin said both might offer their versions for consideration. ETHICS RULES The House will also consider several more amendments to the Rules of Professional Conduct. In a blow to would-be reformers during the August meeting in Chicago, the policymaking House rejected a proposed change to Model Rule 1.6, paragraph b(2) that would have permitted attorneys to disclose information to law enforcement officials to prevent client crimes or frauds. Facing likely defeat, the majority opinion holders on the commission pulled a second proposed change to Paragraph b(3), which dealt with disclosing privileged information to authorities to rectify the financial losses resulting from a client’s crime or fraud in which a lawyer’s services were used. The changes were suggested by the Ethics 2000 Commission, which was assigned to overhaul the rules for the first time since their inception in 1983. The unexpectedly swift and decisive votes against those key provisions may mean there is little left to fight about in Philadelphia. But according to Lawrence Fox, a partner at Philadelphia’s Drinker Biddle & Reath, who led the fierce resistance to the changes last summer, there are still some interesting items up for discussion. The commission has spent a great deal of time and energy considering possible amendments to Rule 4.2, which deals with appropriate communication with represented persons. The ethics commission will propose an amendment to the black letter of the rule, stating that otherwise prohibited communications may be authorized by court order. The amendment says that a court order can be sought either to clarify the application and scope of the rule or, in exceptional circumstances, to authorize communication that would otherwise be prohibited by the rule. The other major proposed change to 4.2 would delete a reference in the current rule to persons whose “statement may constitute an admission on the part of the organization.” Fox said he opposes both changes, because each is an attempt by governmental entities to skirt around the rule. “I think that the government is seeking to get an exception to the rule and is not providing any reasoning for this escape route,” Fox said. “The Justice Department doesn’t like the rule because it can’t get between a lawyer and his or her client, which is the way things should be.” The commission is also proposing to revise and reorganize Rule 3.3 (governing candor toward the tribunal) to clarify a lawyer’s obligations with respect to testimony given and actions taken by the client and other witnesses. The term “tribunal” is defined in Rule 1.0 to include binding arbitration and all entities acting in an adjudicative capacity. The commission also proposes reorganizing and expanding the accompanying comment to Rule 3.3 to address some recurring situations not directly addressed in the rule. For instance, the rule now makes clear that the lawyer must not allow the introduction of false evidence and must take remedial steps where the lawyer comes to know that material evidence offered by the client or a witness called by the lawyer is false, regardless of the client’s wishes. Under the existing rule, the lawyer’s obligations to the tribunal may require the lawyer to reveal information otherwise protected by Rule 1.6. The lawyer’s obligation in the existing rule to avoid assisting client crime or fraud is replaced by a broader obligation to ensure the integrity of the adjudicative process. The amendment says that a lawyer must take remedial measures whenever the lawyer comes to know that any person is engaging or has engaged in criminal or fraudulent conduct related to the proceeding, such as jury tampering or document destruction. Other items up for discussion by the house include: � The New York State Bar Association proposes amending Rule 5.7 of the Model Rules of Professional Conduct to make explicit that no nonlawyer or nonlegal entity involved in nonlegal business owned and operated by lawyers and law firms should be permitted to direct or regulate professional judgment of the lawyers/law firm providing legal services to anyone. The NYSBA is also proposing changes to Rule 5.8 to assure that there are safeguards in the model rules relating to contractual relationships between lawyers and nonlawyer professionals to establish clear limits on permissible conduct in multidisciplinary relationships, and otherwise to establish a clear ethical framework for lawyers seeking to enter into such relationships. Relatedly, the NYSBA seeks to amend Rules 7.2 and 7.5 to ensure clients’ informed consent to any such arrangements and to avoid misleading representations to prospective clients. The ABA’s standing committee on ethics and professional responsibility is proposing another amendment to Model Rule 7.2, this one to provide guidance with respect to lawyers’ participation in referral arrangements with other lawyers and nonlawyer professional services providers. The black letter of 7.2 would be amended to provide that such arrangements, as long as they are nonexclusive and are revealed to the clients being referred, do not fall under the rule’s prohibition of a lawyer “giving something of value to another for recommending a lawyer’s services.” The ABA’s criminal justice section has a proposal up for discussion that calls upon the U.S. government to protect attorney/client privilege in its efforts with regard to international money laundering, which again gets back to the principle espoused in Rule 1.6 concerning confidentiality of information. The proposal asks the government to protect the privileged relationship if it enters in any kind of international agreement or enacts legislation on the matter. The ABA’s standing committee on judicial independence recommends that states that elect judges in contested races finance them with public funds. The committee said that while members of the legislative and executive branches are responsive to constituencies, judges are responsive to the rule of law, and public financing would address the perceived impropriety associated with candidates accepting private contributions from individuals and organizations interested in the outcome of cases those candidates might later decide as judges.

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