ABA Adopts Policy on Federal Preemption of State Tort Law, Civil Right to Counsel, Judicial Training, Other Key Legal Issues
During its two days of debate, the American Bar Association House of Delegates adopted a broad range of policies relating to federal preemption, the criminal justice system, principles relating to right to counsel, and training of judges, along with many others.
The association adopted resolution 117, which is designed to bring more clarity to a contentious legal issue. When Congress passes legislation, or a federal agency issues a rule, there may be a question about whether the federal rule “preempts,” or overrides, state tort law. The resolution calls on Congress and federal agencies to follow certain procedures as to when a federal rule “preempts” state law.
Nine proposals, presented by the ABA’s Criminal Justice Section, cover a broad range of issues, from:
- Urging federal and other governments, legislative bodies and courts to provide funds to assure that, in criminal cases, an accused is able to obtain testing of evidence and is provided expert testimony or other assistance to assure a fair trial
- Supporting investigations into allegations of professional misconduct at the Department of Justice
- Urging trial and appellate courts, in criminal cases, to differentiate between “error” and “prosecutorial misconduct” when reviewing conduct of prosecutors
- Urging federal, state and other governments to provide funding to public defender offices and legal aid programs for the provision of advice about immigration consequences of criminal proceedings to indigent, non-U.S. citizen defendants; as well as for sufficient funding and resources to further develop forensic science disciplines; and funding to effectively integrate the forensic science community into the nation’s system of homeland security
- Urging the federal government to provide funding and resources to facilitate the examination of existing standards and certification for government and private laboratories, and for identified forensic science services providers who offer examination of forensic laboratory results
- Urging governments to provide funding and enact legislation to support requiring that offices charged with conducting medico-legal death investigations meet mandatory accreditation or professional standards within a reasonable time frame and, if no board certified forensic pathologist is reasonably available, any death investigation shall be conducted by the most experienced forensic pathologist who is reasonably available and may be submitted for review to a board certified forensic pathologist.
- Urging Congress to enact legislation, and authorize and appropriate funds to achieve a nationwide interoperability of the Automated Fingerprint Identification System.
The House also approved fundamental requirements for effectively providing representation to persons who cannot afford a lawyer in adversarial civil proceedings involving such basic human needs as shelter, sustenance, safety, health and child custody, that are embodied in ABA Basic Principles of a Right to Counsel in Civil Legal Proceedings. The policy was brought to the House by the ABA Standing Committee on Legal Aid and Indigent Defendants with support from 12 other ABA entities and bar associations. In a companion proposal, the House of Delegates adopted the ABA Model Access Act, a model statute for use by implementing jurisdictions to establish and administer a civil right to counsel.
New policy of the ABA also encourages education and training for judges in the United States and abroad about financial market products and practices. The Task Force on Gatekeeper Regulation and the Profession offered a recommendation that was adopted, as revised, which supports the U.S. government’s efforts to combat money laundering and terrorist financing, and adopts the Voluntary Good Practices Guidance for Lawyers to Detect and Combat Money Laundering and Terrorist Financing.
The association also adopted a recommendation urging Congress to enact laws that provide for a Startup Visa, whereby foreign citizens forming businesses are provided a mechanism under which they can enter the United States and obtain permanent residency to build such businesses. Also, the black letter Model Rules for Client Trust Account Records are now policy of the association.
In addition, the House of Delegates adopted a recommendation commemorating the 50th anniversary of the publication of Harper Lee’s novel, “To Kill a Mockingbird,” brought to the house by the Alabama State Bar, and cosponsored by several other state bars as well as the ABA’s Section of Litigation. The ABA adopted a late recommendation urging the federal government to intensify its efforts to provide adequate food, water, shelter and physical security to displaced women and children in Haiti.
With nearly 400,000 members, the American Bar Association is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.