WASHINGTON — The ABA House of Delegates voted unanimously to give the Law Student Division a voice on the Board of Governors at the ABA Annual Meeting in Toronto in August. The 2011-2012 year will be the first time since the division was created that they will be able to vote.

Preston Proposes LSD Vote to Enthusiastic House

“What [the ABA] has done today has sent a strong message to students across the country that they are valued,” said Tommy Preston, a recent graduate from USC School of Law and the last non-voting student member of the board.

The Law Student Division of the ABA was established in 1967 and is the largest professional student organization in the country. It is also one of the largest dues paying entities of the Association.

Preston Reflects on Reasons

Preston said that giving student members a vote in the ABA would help the association gain more student members. It shows that “[ABA] is looking out for our best interests, and that the association recognizes the contributions that students can make to improve the profession.”

The Board of Governors directs the operations of the ABA in line with policies created by the House of Delegates. Its 38 members are elected from the more than 500 members of the House of Delegates.

New Voting Member Speaks to Students

Brandon Smith, from Atlanta, GA, is proud to be the first law student voting member on the ABA Board of Governors. “My encouragement is to students all across the nation to get involved with the ABA. You have a voice that will be heard and now a vote to influence.”

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Business law is a common denominator among many of the most intriguing jobs in the national security and defense industries. Members of an American Bar Association Section of Business Law panel have worked in and around the fields of national defense and homeland security, from the military to TSA and beyond. Their perspectives on the trends and expansion of this practice area since 9/11 informed audience members about a career path they may not have appreciated.

Pictured (left to right) are moderator Lynn Howell (Gulfport, Fla., lawyer), Jacques Shore (Ottawa lawyer and former research director of Parliament’s security intelligence review committee), Frank Jimenez (vice president and general counsel of ITT Corp.), Charles Dunlap (associate director, Center on Law, Ethics and National Security, Duke University School of Law), James Swanson (ABA senior director and retired U.S. Air Force brigadier general), Jarisse Sanborn (retired U.S Air Force brigadier general and staff judge advocate), and Jack Rives (ABA executive director and retired judge advocate general of the U.S. Air Force). Not pictured is panelist James Durant (director of legal services for the U.K.-based 3rd Air Force).

Elaine R. Jones (pictured at left with Canadian Supreme Court Justice Rosalie Abella) received the American Bar Association Section of Individual Rights and Responsibilities' Thurgood Marshall Award Aug. 6. Jones broke ground with a number of "firsts" as an African American woman, including her service as the first woman president of the NAACP Legal Defense and Education Fund.

TORONTO—Elaine R. Jones received the American Bar Association Section of Individual Rights and Responsibilities Thurgood Marshall Award Aug. 6 during the ABA Annual Meeting in Toronto.

Honored for her vast experience as a civil rights litigator and activist, Jones broke ground with a number of “firsts” as an African American woman, including her service as the first woman president of the NAACP Legal Defense and Education Fund, founded in 1940 by Thurgood Marshall.

In 1970, Jones was the first African American woman to graduate from the University of Virginia School of Law. In her acceptance speech, she recounted her arrival at the predominantly white male institution.

“When I showed up at UVA, with a dashiki and an afro, and sandals up my legs … and walked onto the campus, I am sure Mr. [Thomas] Jefferson and everyone else [thought], ‘What have we wrought?,’” Jones said to laughter and applause from those attending the ceremony.

Jones recounted that in 1988, at the recommendation of the Section of Individual Rights and Responsibilities, she broke ground as the first African American to integrate the ABA Board of Governors, where she served for three years.

A former council member of the Section of Individual Rights and Responsibilities, Jones has remained active within the ABA, and currently serves on its Task Force on Preservation of the Justice System.

Jones recounted the individual rights section’s role over the years in pushing the ABA to champion civil and human rights. The section is one of the ABA’s smallest, she pointed out, “but we have the biggest, heaviest mandate.”

Today, she said, the ABA must continue to improve its civil rights record. She singled out how its Standing Committee on the Federal Judiciary evaluates prospective nominees for the federal bench who primarily have civil rights experience. Too many of those candidates, she argued, are given lower ratings because of an unfair bias that civil rights work is not as complex as commercial matters.

“We have to look at ourselves,” she told the ABA audience.

Jones was on the plaintiff’s legal team in Furman v. Georgia, the U.S. Supreme Court case that in 1972 abolished the death penalty in 37 states. She also has litigated numerous class-action employment discrimination cases challenging race and gender discrimination in the workplace.

The Thurgood Marshall Award recognizes substantial, long-term contributions to the advancement of civil rights, civil liberties and human rights in the United States. The ABA Section of Individual Rights and Responsibilities established the award in 1992, conferring the inaugural award upon U.S. Supreme Court Justice Thurgood Marshall. Previous recipients have included Justice Ruth Bader Ginsburg and former Attorney General Janet Reno.

The keynote speaker for this year’s 20^th anniversary event was Justice Rosalie Silberman Abella of the Supreme Court of Canada, who has demonstrated a strong commitment to civil rights, human rights and social justice during her career. She served as a commissioner on the Ontario Human Rights Commission, a member of the Ontario Public Service Labour Relations Tribunal, and as chair of the Study on Access to Legal Services by the Disabled. She was the sole commissioner of the 1984 federal Royal Commission on Equality in Employment, creating the term and concept of “employment equity.”

Abella told of her family’s experience as Jewish victims of the Holocaust, during which her 2-year-old brother and father’s entire family perished. She cited how her parents’ hope for humanity was expressed when she was born in a displaced persons camp in Germany after World War II.

Still, the Canadian justice noted that 40 million people have died as a result of conflicts throughout the world since the founding of the United Nations, which was created to stem world conflict. About the UN, she said, “I know it’s all we have, but is it the best we can do?”

Abella told audience members how important it is to fight injustice, noting that few spoke out in the run-up to the Nazis’ reign of civil and human rights abuses.

“Indifference is injustice’s incubator,” she said.

Pointing out that the term “rule of law” has been used to justify repressive regimes, Abella spoke of the need for “the rule of justice, not just the rule of law.”

TORONTO–Marc W. Joseph, general counsel for Dallas-based Haggar Clothing Co., first hired outside lawyers 20 years ago when he was heading a major antitrust case for another company and needed document coding.

“In those days we really didn’t think much about the ethical side, it was more in terms of getting the work done,” Joseph told participants at an American Bar Association Annual Meeting panel Aug. 6 titled “The Ins and Outs of Contracting Out Legal Work.” The Section of Labor and Employment Law sponsored the session.

For a lawyer, outsourcing can apply to needs ranging from non-legal tasks, such as scanning documents from paper to digital form, to work that requires a lawyer, such as counsel in an area of law unfamiliar to the outsourcer. When it comes to hiring such assistance, Joseph said his attitude mirrors that of his apparel company, which outsources every aspect of production.

“Outsourcing is not only here to stay, but it will grow,” said fellow panelist Mauricio Paez, a partner with Jones Day in New York. Paez advises global clients on privacy and data protection, and strategic sourcing and outsourcing matters.

Panelists shared observations about how lawyers can best outsource work while ensuring quality control, avoiding conflicts of interest and not running afoul of ethics rules.

Gwen Handelman, a scholar in residence at Nova Southeastern University in Fort Lauderdale, Fla., and an ethics co-chair for the Section of Labor and Employment Law, noted that the ABA has worked on ethics issues involving outsourcing for the past 20 years. As part of its review of the ABA Model Rules of Professional Conduct, in light of the globalization of business and advances in technology, the ABA Commission on Ethics 20/20 is developing proposals on outsourcing issues, she pointed out.

Joseph relayed his due diligence when farming out legal and non-legal work.  He checks references and visits the firm or company personally, to interview the employees and supervisors. He asks about the firm’s financials and how it protects client information.

To Paez, the paramount consideration involving outsourcing arrangements is cost-effectiveness, followed by competence and maintenance of confidentiality of information.

Andrew Altschul, who founded a small employment law boutique firm in Portland, Ore., said that another important consideration involves what to charge clients for outsourced work.

If the lawyer added value to the outsourced work through supervision or review of the work product, Altschul said, then the lawyer may pass that extra cost on to the client. Otherwise, he said, the lawyer can pass on only the actual cost. In the meantime, he added, it’s important to be clear and upfront with the client what the costs are.

A law student in the audience asked panelists for their views on whether outsourced legal work has a detrimental effect on lawyers who are having trouble finding work. Paez said he believes that lawyer unemployment is cyclical and expects that it will eventually fall. Altschul observed that increased use of outsourcing actually provides more employment options for lawyers, such as part-time work arrangements.

Moderator Allan Hutchinson, a law professor at York University in Toronto, summed up the session at its conclusion: “The lesson is that outsourcing is a risky business and that lawyers would do well to take a more rigorous approach to these issues.”

TORONTO–So much of the discussion on the evolving legal landscape has revolved around technology and bottom line.  An American Bar Association Annual Meeting program Aug. 6 with general counsels, centered on those issues, focusing on human capital.

How has the trajectory of a young lawyer’s career path changed given finite resources both in a firm and in the corporate environment?   What are some key initiatives being undertaken on the diversity front, and how are corporate legal departments working with outside counsel to encourage diversity?  Those were among the issues delved into during “General Counsel with International Issues: What’s on Their Minds?” sponsored by the Section of Litigation.

Young lawyers are willing to do almost anything given the crazy legal market in the United States, said Michelle Coleman Mayes, general counsel with Allstate.  It’s a buyer’s market, she said, and among the shifts is the increasing use of contract lawyers.  On the flip side, the legal jobs market in Canada is relatively good, said Terrie-Lynne Devonish, chief counsel for Aon Canada.

While firms more traditionally have been seen as the training grounds for young lawyers prior to any thought of their moving in-house, that is beginning to shift due to the economy.  Mayes said that her company is currently hiring some graduates out of law school and is also working to promote the next generation of lawyers through how the company deals with outside counsel. “We’re interested in the pipeline,” Mayes said she tells law firms.

Riccardo Trecroce, vice president and general counsel of Magna International in Aurora, Ontario, said that he is not a big believer in bringing first-year associates in-house because of the lack of training resources.  He does, however, seek to work with less-experienced associates from an outside firm on a short-term basis.  “If they’re a good fit, we bring them on” for more permanent work with the company, Trecroce said.  Panelists agreed that there are problems with training of young lawyers both in-house and in firms.

The Leadership Council on Legal Diversity, of which Mayes is a member, was announced in May 2009 by General Mills’ general counsel Rick Palmore.  The council has four strategic initiatives: Benchmark, Development, Partnerships and Pipeline.  One of Allstate’s key initiatives, said Mayes, centers around the them of “inclusive diversity.”  As she describes it, “diversity is getting folks in the doors,” while inclusive diversity is “getting them to the table.”  One of the reasons why minorities and women don’t stay with an employer is because they don’t have any real say or decision-making.

Devonish said there is an evolution occurring on the Canadian law scene.  Firms are just beginning to understand the need for real diversity in practice, and in-house counsel can play a key role in assisting firms.  Mayes spoke to a “diversity fatigue” factor or a cynicism whereby firms feel that they have made efforts but haven’t really seen a return.

Kenneth Thompson, senior vice president and global chief legal officer at LexisNexis Group, said that mandates will not work, and there are no quotas with his company.  But if you have a diverse slate of candidates, the numbers of diverse lawyers are automatically going to go up.

A more diverse workplace will also evolve sooner if there is a “fierce conversation,” said Mayes. You can’t just have “feel-good conversation” and expect to get results, she said.

Richard Horwitz of Potter Anderson & Corroon in Wilmington, Del., moderated the program.

TORONTO — Sudevi Mukherjee-Gothi has an Asian-West Indian upbringing that she applied to her work. In “Allies, Influence, Power and Politics in the Office,” a program of the American Bar Association’s annual meeting in Toronto, she said that those values did her a disservice.  They isolated her from her law firm colleagues and, after two years of hard work, Mukherjee-Gothi decided to leave the practice, thinking she wouldn’t advance at the firm. It was only during her exit interview that she was told that she had been on the partnership track.

Mukherjee-Gothi’s experience taught her the value of having allies in the workplace, and she applied those lessons to her next position at Torkin Manes LLP in Toronto, where she is now a partner. “I made a concerted effort—which was very hard for me, given my cultural mores—to be more open about myself personally, so people felt invested in me,” she said. “I realized, who really wants a partner that they don’t know on a personal level?”

“It’s very difficult to be successful, but it’s extraordinarily difficult to be successful if you’re not going to ‘work’ your own identity,” said program moderator Susan Letterman White of Letterman White Consulting of Philadelphia, Penna., who pointed out that being a woman or part of another minority group amplifies the need to market one’s identity.

It’s more difficult to advance your career or develop business when you’re a woman or part of a minority group because power rests with the majority, White said. “All the talent in the world is wonderful, but unless you have somebody in a position of power who can help send business your way, it’s unlikely that you’re going to have the kind of opportunities to advance.”

Carol Hogan of Jones Day in Chicago found such a mentor early on in her career by following the example of her sister, who had proactively sought a woman role model to help guide her career. “She said, ‘find someone who you can learn the most from,’” Hogan said of her sister’s good advice. “Don’t be afraid to walk up to someone and say, ‘I want to work with you.’”

Building a broad network is important, noted White.

Panelist Anthony Davis of Hinshaw and Culbertson, in New York, agreed, saying that for him it was important to meet as many people as possible who might hire him or know of someone who would hire him. “It’s about networking, in every sense of the word.”

“The networks you create, you never know how they will help you,” said Mukherjee-Gothi, telling the story of how her leadership position in a South Asian bar association connected her to someone who eventually helped to find her business. “It wasn’t something that I strategically sought out, but the hard work [creating a network] definitely pays off.”

“Allies, Influence, Power and Politics in the Office” was sponsored by the ABA Women Rainmakers of the Law Practice Management Section.

Panelists (L-R) Kristi Gaines, Renato Izquieta, Carmen Daugherty, Antonia Fasanelli, and Elizabeth Yang discuss the draw of careers in public service with law students and young lawyers.

TORONTO — U.S. and Canadian experts weighed in on cross-border class action practices, protocols and issues yesterday at the American Bar Association Annual Meeting.

Panelists of the program “Multi-Jurisdictional, Cross-Border, and International Class Actions: Where Are We Heading?” agreed that jurisdictional and due process procedures were the top challenges to successful cross-border cases.

“We are fumbling our way toward a solution,” says the Hon. George R. Strathy, who sits on the Superior Court of Justice in Toronto. “We’re not at the end of the road, but not at the beginning of road either.”

Judges are faced with these issues all the time in situations such as airplane crashes, train derailments, purchases of securities and other instances.

“The issues we face with U.S. and Canada are the tip of the iceberg as to what we will face worldwide,” said John P. Brown, a partner at McCarthy Tétrault in Toronto and member of the firm’s National Class Action Group.

With the world growing smaller in a global economy, Brown said it is imperative that more cooperation is fostered between courts in varying countries.  “We’re dealing with very complex issues and without cooperation they could be disastrous,” added Brown, who is the chair of the International Bar Association’s Task Force on International Procedures and Protocols for Class Actions.

Brown said, to date, there have not been a lot of issues with cross-border class actions thanks to mutual cooperation. But he illustrated what could go wrong when there is a lack of communication by pointing to the case of Currie v. McDonald’s Restaurants.

The allegation in this case centered on employees of the marketing company that McDonald’s had hired to produce game pieces for a contest. The employees kept many of the winning pieces for themselves and friends, which did not give customers an opportunity to win prizes in the United States or Canada.

When the U.S. class action was settled it included Canadian customers in the settlement class. But they didn’t know a settlement had been reached. However, Brown said after the U.S. settlement was approved and a judgment was issued, McDonald’s wanted to rely on the U.S. judgment in Canada in an effort to seek a stay of the Ontario class action case, saying that the U.S. judgment had “preclusive effect.”

Brown said when deciding whether to certify a cross-border class, Ontario courts generally failed to examine the question of jurisdiction from the perspective of the Absent Foreign Claimant. He said the Ontario court eventually refused to enforce the U.S. class action judgment, citing the U.S. court’s failure to meet due process and procedural fairness requirements because the notification process was different for Canadian customers.

The panelists are hopeful that new protocols will help guide judges in cross-border cases.

Judge Denise Page Hood, U.S. district judge for the Eastern District of Michigan said that class action is an area of law where there can be a lot of creativity. She said, “If two are being creative, than it’s much more persuasive.”

Hood said that though lawyers are used to talking to each other, “in our courts, judges are not used to talking to each other about a particular case…not everybody is comfortable with talking.”  Hood said, in time, judges will improve their communication because the protocol gives them permission to talk.

Strathy agreed. “We need protocols to guide us,” said Strathy. “If we can talk we will produce a better result for the litigant.”

Panelists agreed that the protocols help to open the lines of communication. “They are an indispensable tool in the tool kit for judges and lawyers,” said Janet Walker, a professor at the Osgoode Hall Law School of York University, author and a member of the ABA Canada/U.S. Class Action Protocol Project.

“They have been developed with such a wealth of experience…people who know what will work and what will not work. I’m very optimistic about it,” Walker added.

ABA protocols for multi-jurisdictional class proceedings and protocol on court-to-court communications in Canada — U.S. Cross-Border Class Actions were established and submitted to the House of Delegates for a vote during the August 2011 session. The Protocol for Management of Multi-Jurisdictional Class Actions was established by a task force for the Canadian Bar Association and is pending approval.

“Multi-Jurisdictional, Cross-Border, and International Class Actions: Where Are We Heading?” was sponsored by the Section of Litigation.