Jon Leibowitz, Federal Trade Commission Chairman

Federal Trade Commission Chairman Jon Leibowitz discussed the agency’s law enforcement actions and initiatives Nov. 17 at the American Bar Association’s Antitrust Law Section’s Fall Forum in Washington, D.C.

The conference of antitrust lawyers, government enforcers and scholars also included a discussion of the new Consumer Financial Protection Bureau.

Experts at other sessions explored topics including competition in online markets, antitrust under healthcare reform and pursuit of criminal enforcement agendas on a global level.

Other speakers included Acting Assistant Attorney General Sharis A. Pozen, head of the Justice Department’s Antitrust Division. The forum also featured panelists including FTC commissioners, the European Commission’s director of cartels, the president of the Mexican Federal Commission on Competition, and the policy lead for the Consumer Financial Protection Bureau.

Please click here for a full conference agenda.

WASHINGTON­– Experts from around the country weighed in on the impact of federal budget cuts on the implementation of the recent healthcare reform at the American Bar Association’s Washington Healthcare Summit in Pentagon City Tuesday. The two­­-day event was sponsored by the ABA Health Law Section.

“When the president took office in 2009, he looked out at the challenges our country faces and healthcare stood out,” said Liz Fowler, special assistant to the president for healthcare and economic policy at the National Economic Council.

Fowler told attendees that before the Affordable Care Act, healthcare costs affected American companies’ ability to compete globally, and threatened the nation’s economy in the long term.

“For all we spend on healthcare we don’t get our money’s worth,” Fowler said. “Caring for the uninsured and those who cannot afford to pay their bills cost the nation $43 billion in 2008 and increased the premiums for those who have insurance by more than a thousand dollars per family every year.”

Those most affected by the change are lower-income workers, who are expected to benefit from the new regulations.

“The bulk of people who are going to get coverage under the act are low-income workers, who today are making minimum wage or close to it or holding low-wage jobs without insurance,” said Sarah Rosenbaum, a law professor at George Washington University.

While many healthcare associations and organizations supported reform, health experts are becoming increasingly concerned about the impact that federal budget cuts will have on Medicare and Medicaid funding.

“We’re very focused on preserving the funding for Medicare and Medicaid and it would certainly complicate the efforts to extend coverage that was envisioned by Medicare and healthcare reform,” said Lawrence Hughes, assistant general counsel of advocacy and public policy at the American Hospital Association.

Medicare is a significant payer for most hospitals in the United States and reductions in costs will put constraints on what hospitals are able to do, Hughes said.

“The need to reduce costs at the same time that one is attempting to comply with new kinds of regulations and expand services to provide greater quality of care are conflicting ideas that make it very hard to do both,” Hughes said.

Medicaid is either the largest or the second largest item in states’ budgets.  Medicaid covers 60 million people at an annual cost of $400 billion per year, making it the largest healthcare provider in the nation.

“The first concern [for Medicaid directors] has nothing to do with the health reform at all, it’s the budgetary crisis that we are currently facing,” said Matt Salo, executive director of the National Association of Medicaid Directors.

“They are trying to find ways to reduce enough spending to meet their budgetary targets while maintaining their current standards of quality and access,” Salo said. “The decisions they are going to be making and the cutbacks that are being implemented will have an impact on the implementation of healthcare reform when it does come.”

The new regulations are expected to present new changes for lawyers who specialize in healthcare.

“Healthcare lawyers will need to know and understand what those changes are for their own organization to understand what their new healthcare environment will be like,” Hughes said.

ABA News Service is a free service of the American Bar Association. News and media organizations may use, republish, reprint or redistribute this content with credit to ABA News Service as the original source of this content.

U.S. President Barack Obama is calling for cybersecurity legislation, but the legal and policy issues arising out of cyberwarfare are largely unsettled.

So when the American Bar Association assembled a panel of experts on June 13 to discuss recent developments in cyberwarfare law, they called their program “Cyberwarfare Law and Frontier Justice: What’s the Law, Who’s the Judge, and Where’s the Authority?”

There are few guidelines and much uncertainty in the field of cyberwarfare law. “Those in the practice of cyberwar law are in the wild, wild west,” said David Z. Bodenheimer, co-chair of the ABA Section of Science and Technology Law Homeland Security Committee and vice co-chair of the ABA Section of Public Contract Law Cyberspace Committee.

“At this point, we don’t know how to build something to defend every attack,” said Dr. Herbert S. Lin, chief scientist, Computer Science & Telecommunications Board of the National Research Council. Lin directed a report in 2009 for the National Research Council called “Technology, Policy, Law and Ethics Regarding U.S. Acquisition and Use of Cyberattack Capabilities.”

States that fail to take precautions for cybersecurity can be held responsible for attacks originating within their borders, whether or not the actual attacker is known.

“This has become the norm of state response,” said Dr. Catherine Lotrionte, executive director, Institute for Law, Science and Global Security at Georgetown University. “The U.S. has a lot of cleaning up to do before they become sticklers, though,” she said.

Suzanne Spaulding, principal, Bingham Consulting Group, further reinforced that while developing the legal framework for cybersecurity policy, policymakers need to include oversight. “We need to take a step back and think about the politically sensitive areas,” she said.

This program was co-sponsored by the ABA Science and Technology Law Section’s Homeland Security Committee, the ABA Public Contract Law Section’s Cybersecurity Committee, and the Standing Committee on Law and National Security.

“Equal justice under law is what it says. It doesn’t say equal justice for the rich, for the powerful, for the momentary majority — because that majority changes from moment to moment, and eventually we all become part of the minority,” Zack said. He pressed the graduates to remember that a law degree is “the most powerful weapon in the world, because it gives you the power to right a wrong.”

Zack offered advice on how to chart a career in the midst of sea changes in the legal profession.

“My father had it right when he advised me, ‘Find a job that you like, and you will never have to work.’ So to you, congratulations and welcome to an amazing path for your life’s work. Expand your horizons not only by becoming active in the local, state and national bar associations but donate pro bono time to legal causes you care about, especially helping the poorest in our society. This kind of public service has always been part and parcel of private sector legal work. It sharpens your skills, builds a network and helps land a job or a better one. But most importantly, it will help shape how your generation of lawyers, like the ones before you, will be remembered. I am confident that it will be remembered well. “

These topics were covered during “Selecting, Retaining and Working with Foreign Counsel: Pitfalls and Successes,” a Section of International Law Spring Meeting panel.

How does one go about selecting a foreign counsel? Panelist Gabrielle Buckley, shareholder in the Corporate Practice Area of VedderPrice, suggested speaking with one’s law partners; looking back to law schoolmates; perusing directories; and retrieving information from articles read or conferences attended on the subject matter.

Representatives from Argentinean, Netherland and Japanese legal practice talked about the expectation of disclosing industry competitors when discussing the conflict issue. Tom Schutte, with De Brauw Blackstone Westbroek, New York, but speaking about practice in the Netherlands, said that the representation of a competitor within an industry would likely be disclosed to the potential partnering firm if there were a limited number of players within the industry.

Yasuhide Watanabe, with Nagashima, Ohno & Tsunematsu, speaking to the Japanese legal climate, noted that there are a very limited number of major law firms in Japan, so the issue of conflicts has to be addressed each day. Watanabe said that the fact that his firm represented a competitor in general would be disclosed, but not the specific competitor’s name.

When asked about usual billing practices, Watanabe said that much of Japanese legal services are billed hourly. Hernan Slemenson, with Marval O’Farrell & Mairal, Buenos Aires, said that Argentine firms often bill hourly, but firms are flexible enough to have a blended system of billing, and alternative fee arrangements such as flat fee or success billing are used.

In-house counsel may face challenges with the business people in their company in that the latter may look at the lowest bids and not fully take into consideration who would be working on the client matter — associates or partners.

Expectations on communications also vary from nation to nation. Even when there are no language barriers, cultural barriers may exist as to tone of e-mails.  Response time, too, may center on different expectations: managing expectations, communicating and interim responses all help. Significant time zone differences may be used to one’s advantage with international firms working so that the American client has information and work product in his or her inbox in the morning. Alternatively, some lawyers abroad will simply adjust their work hours to suit American clients.

Carol Mates, Washington, D.C., also served as panelist. James Silkenat, Sullivan & Worcester LLP, New York, introduced the panel program.

Immediate Past-President of the American Bar Association Carolyn Lamm spoke today at a Washington Foreign Law Society luncheon in Washington, D.C., about her efforts as the ABA’s representative to the United Nations to develop a system of civil responsibility for states that engage in state-sponsored violence against women as a weapon of war, and a system of reparations to victims from offending states. The majority of victims of state-sponsored sexual violence currently have no recourse to either criminally prosecute the perpetrators or to receive remedies for the harm they have suffered.

“We need to find a way so that individual victims can make claims individually or collectively and the states would be responsible,” said Lamm, a lawyer with the firm White & Case.

Before her remarks, Lamm joined Piper Hendricks, an associate with International Rights Advocates and the director of Programs for the Washington Foreign Law Society, and Alex Khachaturian, an associate at White & Case and board member of WFLS.

Immediate Past-President of the American Bar Association Carolyn Lamm exchanges ideas with Janine Moussa of the Northeastern School of Law at a Washington Foreign Law Society lunch today at Lamm’s firm, White & Case, in Washington, D.C. Lamm, current ABA representative to the United Nations, spoke of the need for a system of civil responsibility for states that engage in state-sponsored violence against women as a weapon of war, and a system of reparations to victims from offending states. Currently, the majority of victims of state-sponsored sexual violence have no recourse to either criminally prosecute the perpetrators or to receive remedies for the harm they have suffered.

(L-R) Russell Sewell and Tom Boller of the Capitol Partners Public Affairs Group , Policy Advisor to the Governor David Werner, State Representative Wendell Willard (R), State Bar of Georgia President-elect Kenneth L. Shigley, Governor’s Executive Counsel Todd Markle, Maloy Jenkins Parker partner Buddy Parker, Deputy Attorney General Mary Beth Westmoreland.

A delegation from Georgia participated in a “Dialogue on Strategies to Save Money, Reform Criminal Justice and Keep the Public Safe,” on Friday, May 6 at the American Bar Association in Washington, D.C.

State Officials Get Smart on Crime

by Rob Boisseau
American Bar Association News Service
May 9, 2011

WASHINGTON, D.C. — Former Virginia Attorney General Mark Earley had been listening to a roomful of state legislators, aides, district attorneys, defense attorneys and judges talk about how to fight crime.  When it was his turn to speak, Earley looked at the audience and asked a simple question: How many of those present ever had a family member or friend in prison?

More than half of the hands shot up.

“Incarceration rates in this country have grown exponentially since the ‘Tough on Crime’ policies of the 1990s,” said Earley. “We lock up so many people that one in every 31 adults is under supervision of a government agency, whether a prison, parole or probation authority, at any given time.”

Earley, state officials and criminal justice experts met in Washington, D.C., on May 6 to discuss how states can revamp their criminal justice systems, an effort brought about in large part because of anemic state budgets.  At a time when state programs face stagnation or elimination, the costs of arresting, prosecuting, defending, jailing and supervising offenders released from jail are under tough scrutiny.  Drug offenses, misdemeanors and an ever-expanding list of crimes categorized as felonies burden the system.

In 2009 more than 2 million people were either in jail or prison in the United States.  The 1.4 million incarcerated in state facilities in 2008 cost an average of more than $23,000 each; in 2009 New York spent approximately $45,000 to house each detainee before trial.  At any time, half a million individuals sit in jail awaiting trial, having not yet been convicted of a crime; nevertheless, the nation’s taxpayers spend $9 billion to keep them locked up.  State and local governments spent approximately $52 billion in 2008 to house inmates and for all other aspects of corrections.

Crippling state deficits and the cost of holding so many in prison play a defining role in what many see as a seismic shift away from the “tough on crime” policies of the 1980s and 1990s toward what some in criminal justice call a “smart on crime” approach.  State legislators on both sides of the aisle are examining ways to fight crime and keep communities safe without breaking the budget.  They are joined by a diversity of interest groups — from the conservative Right on Crime Campaign to the ACLU — which advocate for more effective, efficient ways to deal with crime.

“There is a growing consensus in the country that we lock up too many people for too long at too great an expense, both financial and social,” explained Bruce Green, chair of the American Bar Association’s Criminal Justice Section.  For Green and the other attendees, the goal is “a better criminal justice system that keeps us safe and saves us money.”

Cost saving comes down to three key objectives: decriminalizing minor offenses such as dog leash violations or feeding the homeless, providing alternatives such as house arrest for low-risk offenders, and investing in job training and substance abuse treatment programs that reduce the likelihood that individuals commit additional crimes and return to prison.

States’ initiatives in these areas have proven very successful.  Pat Colloton, a Republican member of the Kansas House of Representatives, led the charge in her state to reduce the billions spent on corrections.

“We ran a pilot in Topeka, Kansas, with the highest risk population most likely to come back [to prison],” she said.  “Offenders had an 82 percent likelihood of returning to prison; we reduced that to 32 percent.” The program offered work support, transportation to work, housing, substance abuse and mental health assistance, and family counseling to offenders re-entering the community.

Statewide, Kansas’ prison population dropped 7 percent, parole revocations by 50 percent, and the new crimes committed by parolees plummeted 36 percent.

Kentucky Supreme Court Chief Justice John Minton Jr. endorsed risk assessment tools as a way to help courts decide which offenders pose a significant public danger or flight risk. Those who don’t can be released on bond until their hearing, saving the incarceration expense. “There is a growing need for evidence-based decision making,” said Minton.

Minton called criminal justice reform an “economically prudent thing to do.”

In many states, reforming the criminal justice system is an opportunity to get offenders who pose little risk to their communities out of jail, and put violent criminals in. William Shepherd, who until recently was Florida’s statewide prosecutor, said he faced opposition to anti-gang legislation because money became the key driving issue.

“The main pushback we got [to anti-gang legislation] was about prison bed space,” he said. “We don’t want the prisons filled with a bunch of habitual traffic offenders, we want the gang members.”

Several attendees on May 6 expressed concern that those facing election could be painted as “soft on crime.”  The 1988 presidential race was rocked by allegations and political advertisements run against Massachusetts Gov. Michael Dukakis who supported a weekend furlough program during which William “Willie” Horton raped a Maryland woman.  Although more than two decades have passed since that race, Willie Horton remains in the political lexicon.

Anne Swern, first assistant district attorney in Brooklyn, N.Y., cautioned the assembled policymakers against abandoning effective criminal justice reform in tight budget times. “I don’t recommend you sit back on your laurels and say ‘I can’t do anything … that’s offensive to me and offensive to taxpayers.”

–end–

Attorney Douglas Spaulding addresses the audience at a Law Day event.

As holidays go, you likely won’t find the words “Law Day” pre-printed on any desk calendars, but for lawyers like Douglas K. Spaulding — who has represented three Guantanamo detainees petitioning for a writ of habeas corpus — the annual May 1 celebration is a reminder of the backbone of the legal profession:  The United States Constitution.

“After I saw the pictures of the detainees, it made me wonder, who are those guys, what had they done …” and to what legal protections are they entitled, Spaulding recounted Monday to an audience of high school teachers gathered at the National Press Club for a Law Day program.

Spaulding asked his firm, Reed Smith — where he represents clients such as mutual fund companies and banks — if he could represent, pro bono, some of the men held at Guantanamo.

The U.S. Constitution provides for the “privilege of the writ of habeas corpus,” which allows a prisoner to challenge imprisonment. The privilege cannot be suspended except “when in cases of rebellion or invasion the public safety may require it.”  For example, President Lincoln suspended it during the Civil War.

Spaulding said that, if anyone ever needed a lawyer, it is the Guantanamo detainees.

And, the U.S. Supreme Court agreed, essentially, in a series of three cases — Rasul v. Bush, 2004; Hamdan v. Rumsfeld, 2006; and Boumediene v. Bush, 2008.  Spaulding explained that the 2008 decision said, “Attempts to strip [the detainees] of their habeas right is unconstitutional — not just a violation of a statute.”

Spaulding grew up in a Marine Corps family.  His mother served during World War II and his father was killed serving in Vietnam.  Spaulding served four years in the Marines before going to law school.

He reflects on the potential internal conflict between his Marine Corps service and his service to the Constitution, and concluded, “What I’m doing is probably the most patriotic thing I can be doing at this stage in my life.”

Spaulding has worked with three detainee clients and has made more than a dozen trips to Guantanamo. Two clients have been released.  The third — a professional dancer from Russia who joined the Russian army — is now in his 10th year of captivity. His case was tried about a year ago and, said Spaulding, the judge wrote a 44-page opinion ruling “that the government failed to prove [his client] was a terrorist and directed the government to take steps to release him.”

The U.S. government has appealed that decision, and in the court of appeals, noted Spaulding, “No detainee has yet won.”

Now 172 detainees remain at Guantanamo.  According to Spaulding, fewer than 50 have been designated for indefinite detention and about a dozen are slated for criminal prosecution.  The cases will be held at military tribunals in Guantanamo instead of in the federal courts.

Spaulding believes there are “two narratives” at play:  the Western narrative — the United States represents the rule of law; and the Bin Laden narrative — the United States is the great Satan.

“The more we can do to demonstrate our narrative and our core principles, we will ultimately be successful in the battle.  There is nothing we can do or say that is more powerful than trying Guantanamo detainees in Article III [federal] courts,” said Spaulding.

The first detainee who will be tried in a military commission is Abd al-Rahim al-Nashiri. Prosecutors are seeking the death penalty against the man who is accused of masterminding the USS Cole bombing.

Spaulding’s presentation to high school teachers highlighted the theme of Law Day 2011, The Legacy of John Adams: From Boston to Guantanamo.  The event was sponsored by the American Bar Association and the Close Up Foundation, a nonprofit organization that educates and inspires young people to become informed and engaged citizens.

ABA President Stephen N. Zack, who is the organization’s first Hispanic  president, said, “I picked the Law Day theme after coming back from Guantanamo.”  He and his family fled Cuba in 1961, and he had not returned for nearly 40 years.

Zack noted that, ever since John Adams represented the British soldiers who were  accused of killing five colonists in the Boston Massacre, there have been many lawyers throughout America’s history who have similarly adhered to the rule of law and defended the rights of the accused, even in cases involving unpopular clients and causes.

“Our constitutional democracy sets us apart. Our Constitution protects the minority from the tyranny of the majority.  No man is above the law and no one should be beneath its protection,” said Zack.

From left to right: Onno Hückmann, German General Counsel of Chicago, Linda Klein, chair of the ABA House of Delegates and Axel C. Filges, the president of the German Federal Bar spoke at the kickoff event for the exhibit.

An important exhibit on Jewish lawyers in Nazi Germany is open to the public until April 8 at the American Bar Association headquarters in downtown Chicago. Created by the German Federal Bar, “Lawyers Without Rights: Jewish Lawyers in Germany Under the Third Reich” tells the story of how the Hitler regime banned Jewish lawyers from practicing law in 1938, and the damage the ban caused to the legal profession and to the generational practice of law by German-Jewish families.

Celebrating the opening of the exhibit on March 11, lawyers from across the city and the country gathered for a kickoff reception hosted by the ABA. Representatives from the German Federal Bar were in attendance, as well as the German general counsel of Chicago, Onno Hückmann.

Onno Hückmann, German General Counsel of Chicago discusses the importance of the exhibit with local Chicago lawyer Daniel Franks of Northview and his father Gerald Franks of Glencoe.

“This exhibition reflects a time when the rule of law was utterly neglected,” said Axel C. Filges, the president of the German Federal Bar. “I am pleased and thankful that the ABA is hosting this exhibit, as lawyers are frontliners in the war against injustice.”

The exhibit traces events beginning on January 30, 1933, when Paul von Hindenburg granted power to Adolf Hilter, ending the peaceful times of the Weimar Republic. At that time, more than half of the 3,400 lawyers in Berlin were Jewish. And in 1938, the decision to ban all Jewish lawyers from practicing law was implemented.

“These people dedicated their lives to a system that later deprived them of their rights as lawyers and as humans,” said Hückmann. “But there is also hope as Germany has the fastest growing Jewish population in Europe.”

Looking to shed light on the travesty, the German Federal Bar created the traveling exhibit. Since it was first displayed in 2000, the exhibit has been shown in more than 70 cities across Germany and all over the world, including Israel. A recent partnership of ABA President Stephen N. Zack, the ABA Section of International Law and the German Federal Bar brought the exhibit to Chicago.

At the kickoff event, Linda Klein, chair of the ABA House of Delegates noted, “It would be easy to sweep these narratives under the rug and try to forget because it’s embarrassing and painful, but we shouldn’t and we can’t. I salute the German Federal Bar for sharing this exhibit, so we will not forget. So as lawyers, we realize that if lawyers don’t speak out against injustice, who will?”

“Lawyers Without Rights: Jewish Lawyers in Germany Under the Third Reich,” is currently on display in the lobby of the ABA headquarters, located at 321 N. Clark Street in Chicago. This free exhibit is open on weekdays from 8 a.m. to 5 p.m., and will run until April 8.

David Kris, retiring Assistant Attorney General for the National Security Division of the U.S. Department of Justice speaks to lawyers at a lunch hosted in his honor by the ABA Standing Committee on Law and National Security. As head of the National Security Division, Kris was responsible for the authorization of electronic surveillance or physical searches through cases brought before the Foreign Intelligence Surveillance Court.