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April 2010

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This article is in the news archives --- for current news go to the Third Branch News.

 

An Interview with ABA President Carolyn Lamm


Carolyn Lamm, an international arbitration, litigation, and trade lawyer from Washington, D.C., is president of the American Bar Association. She will serve until the association’s Annual Meeting in August 2010.

Carolyn Lamm, ABA President

Carolyn Lamm, ABA President

As ABA President, one of your initiatives has been to form the Commission on Ethics 20/20. Why did you make this one of your initiatives and what will the Commission study?

As president of the American Bar Association, I recognized that we must respond to, and be prepared for, a very different world. I created the Commission on Ethics 20/20 to recommend policies that will help ensure that lawyers and law firms are able to meet the challenges of 21st century law practice.

The commission is co-chaired by Jamie S. Gorelick of Wilmer Hale and Michael Traynor, president emeritus of the American Law Institute. In the globalization of our business and the opportunities presented by advancing technologies, the commission will address the ethical and regulatory issues affecting all practice areas and demographics.

At its mid-year meeting the ABA made several recommendations, one of which was to restore federal judicial review of immigration decisions that was limited by legislation enacted in 1996. Why is such review important?

The immigration courts are overburdened, with nearly 300,000 proceedings per year, and the majority of litigants do not have legal representation. Access to the courts is an essential feature of our system of government, and judicial review has been important in protecting immigrants’ rights and civil liberties and correcting improper execution of the immigration laws.

As noted, legislation was enacted in 1996 and 2005 to significantly narrow the scope of federal judicial review of immigration decisions. These restrictions on federal judicial review are exceptional in scope and establish a dangerous precedent for unreviewable government actions. As such, they are incompatible with the basic principles on which this nation’s legal system was founded. The U.S. Supreme Court has limited the reach of some of these jurisdictional preclusions and, consequently, there is now a labyrinth of case law construing the exceptions—and constitutionally required carve-outs to these exceptions—to judicial review of removal orders. As a result, the courts of appeals must now spend an inordinate amount of time determining the scope of their own jurisdiction, and there is a split among the circuits on some of these issues. Restoring the law as it existed prior to 1996 will provide clarity for, and consistency among, the federal courts, and will help ensure fair and just decisions for noncitizens.

The ABA is cognizant of the impact that the increased number of immigration appeals has had on our federal courts in recent years. While we share the concerns about the caseload burden, we do not believe precluding review is the appropriate response—and, in any case, has proved to be ineffective. Therefore, we have also adopted a series of recommendations to reform and improve the immigration removal adjudication process to ensure that only those cases that necessitate further review will reach the federal courts.

The improvement of indigent defense was the subject of an ABA summit where it was noted that lack of funding for indigent defense at the state level is a problem. Is there a similar problem at the federal level? And what is your reaction to a proposal to create an office of public counsel within the U.S. Department of Justice?

Nearly 50 years after the U.S. Supreme Court, in Gideon v. Wainright, recognized the right to counsel as "fundamental and essential to fair trials,"1 indigent defense services in the United States remain in a perpetual state of crisis. Many states are unwilling or unable to adequately fund and administer indigent defense delivery systems.

The inevitable consequence is the conviction of innocent people. Wrongful convictions not only unjustly deprive people of their liberty, but also risk public safety by allowing the real perpetrators to remain free.

In the federal system, there has been more progress and the quality of representation for indigent defendants is generally of high quality. Money is always an issue, however, particularly with respect to the hourly rate paid to panel attorneys, who handle a significant number of the cases. There has been, however, support by each of the several successive presidents for increasing the rates to help recruit and retain qualified panel attorneys. Still there is much to be done.

In this context it is welcome news that Laurence H. Tribe, a Harvard Law School professor, has been hired by the Attorney General to lead a new "access to justice" initiative to improve legal services for poor defendants across the country. The ABA stands ready to contribute to the success of this promising initiative.

The ABA also weighed in on cost-of-living adjustments for federal judges. Can you tell us about the association’s recommendation? This is, of course, of great concern to federal judges; but why does the ABA think judicial pay is important?

The new policy, adopted this February, supplements our existing judicial pay policies. It urges Congress to adopt a new mechanism for calculating and providing judges with regular cost-of-living adjustments (COLAs). Under it, judges would be entitled to annual, automatic COLAs equal to the overall average percentage increase in pay given to federal employees compensated under the General Schedule. Their annual COLAs are determined by an across-the-board base pay adjustment and an additional adjustment based on the cost of employment in the particular locality where they work. To adapt this for use by the Judiciary, the proposed COLA would be comprised of the GS across-the-board base pay adjustment and the national average of their locality pay adjustment. Delinking judicial COLAs from congressional COLAs and linking them instead to General Schedule COLAs, coupled with the repeal of Section 140, would ensure the Judiciary more robust annual and automatic salary adjustments—a small but vital and achievable step that will improve judicial pay and prevent future salary erosion, which will help to attract the stellar attorneys from all segments of the legal profession to the bench.

You have focused on several issues during your tenure, among them, diversity. How do you encourage diversity in the legal profession—and by extension, on the federal bench?

Diversity in the legal profession, including the Judiciary, is a core goal of the American Bar Association and is key to securing meaningful justice for all Americans. We’ve made great strides, but unfortunately we lag behind in diversifying the profession and the bench. Approximately 26 percent of state court judges are women and about one-quarter of federal district and circuit court judges are women. And we have only two female justices on the U.S. Supreme Court. Racial and ethnic minorities make up approximately one-third of the U.S. population, but they represent only about 10 percent of the lawyer population and less than l6 percent of all judges in the United States. Our lack of diversity runs counter to the promise of fairness and equality that is our profession’s bedrock, depriving the community of a bench that reflects the community and of legal advice that is a product of diverse views.

The ABA’s Presidential Diversity Commission recently released "The Next Steps," a report that opens with a powerful statement for encouraging diversity on the bench: "Without a diverse bench and bar, the rule of law is weakened as the people see and come to distrust their exclusion from the mechanisms of justice."

Building a more diverse profession is not a quick-fix, short-term goal. It takes work on everything from expanding the pipeline to the legal profession, to expanding opportunities for women and minority lawyers, to ensuring that all Americans have access to justice. We are committed to seeing a U.S. Supreme Court that reflects our population and a profession in which each lawyer, no matter what his or her gender, racial or ethnic background, sexual orientation, or disability, has the opportunity to achieve all that he or she is capable of.

How would you describe the ABA’s current involvement in the review of judicial nominees? How do judicial vacancies affect your constituents?

In 2009, the American Bar Association Standing Committee on the Federal Judiciary resumed its long-standing practice of providing the White House with the committee’s evaluation of the professional qualifications of each prospective nominee to a lower federal court in advance of the President making a nomination.

The committee’s objective is to provide a thorough, impartial and confidential peer review of the professional qualifications of each prospective judicial nominee. If the president decides to make the nomination, the committee submits its final rating to the White House, the Senate Judiciary Committee and the U.S. Department of Justice to assist in the confirmation process. The committee’s performance of its unique role in the evaluation process helps ensure that the most qualified persons serve on the federal Judiciary.

The ABA is concerned about the high judicial vacancy rate, which has hovered above 10 percent for several months. Such a large number of vacancies deprives the federal Judiciary of the judges needed to resolve disputes in a timely fashion. Vacancies, of course, affect courts differently. In jurisdictions such as the Eastern District of California, where caseloads are so high that additional new judgeships are needed, long-standing vacancies produce judicial emergencies and result in significant delays in the civil docket. Reducing the vacancy rate will require a concerted and sustained effort. We have renewed our call for the Obama administration and the Senate to make the judicial nomination and confirmation process a priority.

In March 2009, the Judicial Conference advised all federal courts to review attorney admission policies to address an incident of a phony lawyer practicing in federal courts. Is the ABA concerned about such "phony" lawyers and, if so, how does the ABA address the problem?

The protection of the public from harm arising from incompetent and unethical conduct by persons providing legal or law-related services is a concern of the legal profession.

In August 2003, the ABA adopted as association policy the recommendation of the Task Force on the Model Definition of the Practice of Law that each state and territory should determine who may provide services that are included within the state’s or territory’s definition of the practice of law and under what circumstances, based upon the potential harm and benefit to the public. The determination should include consideration of minimum qualifications, competence and accountability.

In addition, the ABA has established a system of assigning a universal identification number to each licensed lawyer. On-line access to the data bank is now available so that federal courts may check to see if lawyers practicing or seeking to practice in their courts have been disbarred or suspended elsewhere. For access to the data bank, the federal courts should contact Ruth Woodruff at 312/988-5299 or WoodrufR@staff.abanet.org.

1372 U.S. 335 (1963).