ABA midyear meeting. Canny Decisions

• Author: Matt Reynolds
• Pages: 61-62

ABA Insider | ABA MIDYEAR MEETING

Andrew Perlman, the former chair

of the ABA Center for Innovation and

dean of Suffolk University Law School,

pushed for amendments that would

soften opposition and win support for

the resolution. Proponents added lan-

guage to the resolution to make clear it

would not alter any of the ABA Model

Rules of Professional Conduct.

One amendment called for “the

provision of legal counsel as a matter

of right and at government expense

for children facing essential civil legal

matters and for low-income individuals

in adversarial proceedings where basic

human needs or a loss of physical liber-

ty are at stake.”

The ABA Center for Innovation

also removed passages from the report,

excising language related to nonlawyer

partnerships and nonlicensed attorneys.

Perlman said the resolution was

not an endorsement of any one ap-

proach; rather, it asks states to pursue

regulatory innovations to close the

access-to-justice gap. “Some view this as

a camel’s nose under the tent,” he said

in an interview. “There is no camel, and

there is no tent.”

If bar rules are changed, private

equity  rms could gain a foothold in

the legal profession, which could hurt

smaller  rms and solo practices, said

Stephen Younger, a past president of

the New York State Bar Association, a

member of the House of Delegates and

a partner at Patterson Belknap Webb &

Tyler in New York City.

He said the “watered down” version

of the report had calmed fears that the

resolution was endorsing nonlawyer

ownership.

“If you have nonlawyers owning a

law  rm, what’s to prevent Walmart

from coming into every town in Amer-

ica and start selling wills, selling house

closings and doing the routine things

that lawyers have traditionally done in

America?” Younger asked.

During a Solo, Small Firm and

General Practice Division meeting, ABA

President Judy Perry Martinez cited

a short passage from the preamble of

the ABA Model Rules of Profession-

al Conduct, which states all lawyers

should  ght to “ensure equal access to

our system of justice for all those who

because of economic or social barri-

ers cannot afford or secure adequate

legal counsel.”

“I’m not going to comment on the

resolution itself, but that’s pretty po-

tent,” Martinez said. Q

ABA MIDYEAR MEETING

Canny

Decisions

ABA House of Delegates

urges legislation protecting

marijuana lawyers and banks

BY MATT REYNOLDS

The ABA House of Delegates

adopted two resolutions

urging federal legislation be

passed to shield lawyers and

banks from criminal liability for provid-

ing services to marijuana businesses in

states where the drug is legal.

Both resolutions were sponsored by

the Tort Trial and Insurance Practice

Section and passed overwhelmingly.

Under Resolution 103B , the ABA

will lobby Congress for changes to

federal laws so lawyers do not face the

threat of criminal charges when they

represent clients in states that have

legalized marijuana.

Steven Cash, a member of the TIPS

Cannabis Law and Policy Committee

who co-authored Resolution 103B, told

the House of Delegates that 33 states

have legalized cannabis, but attorneys

could still be charged with conspir-

acy and aiding and abetting under

federal law.

“That’s an untenable position,” said

Cash, counsel at Day Pitney in Wash-

ington, D.C.

Despite the fact that prosecutions

are unlikely, the current state of the law

could deter lawyers from represent-

ing marijuana clients and businesses.

Under the Controlled Substances Act,

marijuana is a Schedule I drug, which is

the same category as heroin. Last year,

the ABA passed a resolution urging the

drug be removed from Schedule I.

“Many lawyers believe, as an ethical

matter, that they should not engage in

conduct that violates a criminal law,

even if the chance of prosecution is

slim, perhaps even vanishingly small,”

the report accompanying the proposed

resolution stated.

Bank on it

Resolution 103D calls on the ABA to

urge Congress to clarify and mandate

federal laws to ensure banks and other

 nancial institutions can do business

with marijuana companies and attor-

Illustration by Sara Wadford/Shutterstock

ABA JOURNAL | APRIL-MAY 2020

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