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Decrying limits placed on military tribunal defense lawyers, American Bar Association President Alfred Carlton Jr. unveiled a proposal Friday urging the government to revise some of its proposed rules for the proceedings. The ABA proposal seeks to ensure that private attorneys who represent so-called enemy combatants are guaranteed certain due process rights, including attorney-client privilege and full access to information necessary to the defense. At a press conference, Carlton flagged the military tribunals proposal as one of the top orders of business that the ABA’s House of Delegates will take up during its annual meeting in San Francisco this week. He also highlighted pending ABA proposals concerning corporate governance and ethics rules. Carlton, whose one-year term as ABA president concludes Tuesday, also used the opportunity to sound off on longstanding ABA causes, such as flaws in the current death penalty system and “a crisis” in judicial pay. But the military tribunal issue was clearly the focus of the speech. If the ABA’s 539 delegates vote to adopt the proposal this week, the association will officially start pressing the government to change rules affecting civilian defense counsel in military trials of terrorism suspects. “This proposal represents an attempt to help our government secure the safety and freedom of our own citizens and maintain the cherished standards of justice and due process that have made our nation great,” Carlton said. Among the other proposals that the delegates will vote upon this week is an amendment to ABA’s model rules of professional conduct regarding attorney-client privilege. The proposal allows a lawyer to reveal information to prevent a client from committing a crime that is reasonably certain to result in substantial injury to the financial interest or property of another. “Post-Enron, post-Tyco, post-9-11. … I believe that it’s time to take another look at it,” said Carlton, noting that 42 states already have such an exception to attorney-client privilege. Meanwhile, prominent attorneys, judges and politicians weighed in on hot-button topics at various seminars and programs Friday. California Sen. Barbara Boxer drew applause with tough talk on abortion rights and President Bush’s judicial nominees. Speaking at the National Association of Women Lawyers awards lunch, Boxer promised to do everything she could to protect Roe v. Wade, “including any type of filibuster we have to launch to protect that right.” She also repeated her opposition to 9th Circuit nominee Carolyn Kuhl, a Los Angeles County Superior Court judge. Opposing Kuhl was “really hard for me, but I read the record,” Boxer said, adding that Kuhl tried four times to overturn Roe. Kuhl “would make the court move so far to the right that we just couldn’t see straight,” she said. Boxer said Bush should appoint bipartisan committees to vet appellate court candidates, saying that approach is working well for California’s federal district courts. Elsewhere at the conference, 60 attendees gathered to see football great Joe Montana and a panel of media law experts debate “Celebrities and the Right of Publicity.” What they got was a Super Bowl-sized rant from Montana about how the media and other groups take advantage of celebrities. Montana was on the panel because he unsuccessfully sued the San Jose Mercury News for using his photo for a commemorative poster it sold after the 1990 Super Bowl. The media and other artists shouldn’t use celebrity images without sharing the profits, he said. “Why should you be able to live off of what I have done?” the four-time Super Bowl champ rhetorically asked the crowd, some of whom paid $75 to get CLE credit for the session. “You haven’t done a damn thing,” he said. Celebrities don’t have input on privacy laws, and “lawyers and judges look for every loophole they can find” so people can make money off of famous people, he said. He also took a shot at sports writers: “Those who can’t do, write about it.” Moderator George Freeman, a New York Times attorney, asked whether celebrities depend on the media for fame. Montana replied he would have played football whether or not it made him a star. “It’s taken me since I was 8 years old to do what I love to do,” he said. The military tribunal proposal was released along with a report by the ABA Task Force on Treatment of Enemy Combatants, which was highly critical of the Department of Defense’s proposed rules regulating civilian defense lawyers. Under defense department guidelines, a prisoner can opt for a civilian defense counsel to supplement a guaranteed military defense counsel. The report cites six limitations that it claims prevent attorneys from providing effective counsel to defendants. These include government monitoring of attorney-client communications, lack of guaranteed access to all commission proceedings or information, restrictions on consultations with outside attorneys or experts, prohibitions from speaking publicly about a case, the costs of attorney background investigations and the prohibition of non-U.S. citizen lawyers. “Ultimately we have created a system that is being met with widespread scorn around the world,” said Neal Sonnett, chair of the task force. But Sonnett and Carlton both stopped short of calling for an ABA boycott of the military tribunals if the government ultimately rejects its proposed revisions. Rather than declaring it unethical for ABA members to participate in the proceedings under the current regulations, Sonnett called it a “personal decision” that every lawyer has to make. “I am hopeful that the Department of Defense will change these rules so that lawyers can provide adequate defense to their clients,” Sonnett said. Reporters Jahna Berry and Jason Hoppin contributed to this report.

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