ABA meets its Waterloo

The much revered American Bar Association is facing a crisis of confidence as it drags its feet over the issue of multidisciplinary practices. Ryan Dunleavy assesses its chances for survival.

The American Bar Association (ABA) is talked of with a reverence unheard of in lawyers’ conversations about the Law Society. It commands column inches in the press for championing issues such as its fight to help minorities and its campaign to change the way the legal profession is run, as well as being quoted as an authority on the US legal industry.

But there are questions over whether the world’s largest voluntary organisation continues to have the influential role in the US that UK lawyers suppose, and if it does, how much longer this will last.

The ABA argues that it has served US lawyers for 122 years and continues to act as the main advocate not only for its 404,698 members but for the one million attorneys nationwide.

In its view, it still sticks to the principles of its original constitution that define the purpose of the ABA as being for “the advancement of the science of jurisprudence, the promotion of the administration of justice and a uniformity of legislation throughout the country”.

While doing this it says its current mission is “to be the national representative of the legal profession, serving the public and the profession by promoting justice, professional excellence and respect for the law”.

But although it may wish to continue serving the nation’s lawyers with as much authority as it has always done, many lawyers are not altogether happy with the way the ABA has recently been going about its business.

As the organisation’s recommendations are non-binding, it is up to each state’s supreme court to institute them. There are now signs that states may stop referring to ABA recommendations to the same degree they have in the past because it appears to be losing some of its direction.

The debate over whether to allow multidisciplinary partnerships (MDPs) in the US is causing the most consternation within the ABA, and consequently is drawing the most criticism from outside.

For the past two years it has vacillated over whether to recommend that states introduce MDPs, and no decision appears to be immediately forthcoming, although president William G Paul says it will probably be finalised at the ABA July conference to be held in London and New York, or, he concedes, at the following conference in February next year.

But for many lawyers, this is not decisive enough. In the past year they have seen the ABA switch from saying it was going to draw up a blueprint for MDPs to making its most recent statement that MDPs should be allowed only if lawyers have “the control and authority necessary to assure lawyer independence in the rendering of legal services”. The draft recommendation adds that MDPs could be introduced but in a manner “that protects the public and preserves the core values of the legal profession”. These nebulous phrases are the ABA’s way of saying it is not so sure about MDPs after all and the association has been described by pundits as “back peddling”.

The ABA is expected to take the lead over state bars but has not done so on this issue. Most state bars are declaring themselves vehemently against the whole idea of MDPs, although some lawyers are resigning themselves to the inevitability of their introduction, and the Philadelphia Bar Association says it wants MDPs to become commonplace.

Such confusion is being blamed to a large extent on the ABA’s indecision, because if the ABA made a solid recommendation it would be taken up by some states and rejected by others, and the situation could then be resolved.

But the ABA says that after two years it is still in the grips of democratic decision making.

Paul says: “You can’t rush this one. Some people think it is the most important issue the profession has faced in several decades.”

Sherwin Symmons, chair of the ABA commission on MDPs, echoes this when he argues: “The problem with the issue is it is not easy to get your arms around.”

And they have a point – allowing MDPs would affect law firms tremendously, and not doing so may stop the US keeping pace with other developed countries, such as the UK where it looks likely that MDPs will be embraced by the Law Society.

But many lawyers think the raging debate about MDPs shows the cracks in an organisation that cannot possibly recommend effectively on such issues for such a diverse nation. The US of course has different legal jurisdictions for each state, which are so diverse that each state may as well be a different country – Louisiana practises French law based on a Roman code, Utah is ultra conservative about its legislation, New England looks to commerce for its leadership and bases its system on common law and California has as many lawyers as the whole of the UK.

Michael Simmons, partner at Finers Stephens Innocent and associate member of the ABA, says the differences are becoming more apparent in a society where public bodies are regularly in the media spotlight.

He says: “The ABA is not seen as being as bad as people think of the Law Society over here. But it is being scrutinised more.”

Some would take this point further. Charles Buffon, a managing partner of Washington DC firm Covington & Burling, says: “I think the ABA is so divided on the MDP issue that it will not be able to come up with any new model to show the various states.

“But if the ABA cannot reach a consensus on MDPs there will be a question over its utility. The test of any trade association representing any area of the economy becomes irrelevant if it cannot deal with big issues in the profession.

“Here is an issue that will affect legal practice itself. Lawyers are poised to see how well the ABA handles the issue and what conclusion it comes to.

“If the ABA cannot do it, it could lead to a hotchpotch.” He says that in this event the jurisdictions across the US would become even more diverse than they are now.

But he adds: “I think even under the existing regulations MDPs are forming.”

He cites the setting up of Washington DC law firm McKee Nelson Ernst & Young by big five accountants Ernst & Young in August as an example of this. He sees this as a sign that the ABA may well be by-passed by many states when the supreme court in each state makes significant decisions in the future.

But the ABA would still have a role for lawyers on universal issues such as professional ethics. He says: “I don’t think the ABA’s membership will go down but its credibility will.”

This is not the first time the ABA has faced such a test. About five years ago it debated whether to recommend that abortions remain legal within the states. It was an emotive issue that many lawyers thought was, or should be, outside the remit of the organisation.

Paul does not regret that the ABA recommended opting for the woman’s right to choose. “It was controversial but majority rules meant it was a legal matter,” he says.

But what followed, according to head of Buchanan Ingersoll’s health group Jerome Mansmann, were mass resignations from within the organisation and widespread criticism from without.

Joe Linklater, managing partner of the Chicago office of Baker & McKenzie, says: “The ABA created a lot of ill will because it spent a lot of time debating the abortion issue and also put forward an opinion on it. People thought it should not have got involved.”

The problem of the ABA looking indecisive and slow in a fast-changing world is not the only thing that could jeopardise its role in the future.

Many lawyers say it is not courting younger practitioners in the US as successfully as it should. No figures were available from the ABA on how many young lawyers were joining the organisation.

Mansmann says: “I don’t know if there will be a need for an ABA. It will not be significant in the future unless it embraces younger lawyers better. It is lumbering along.”

According to lawyers, the problem is that the ABA has “a stuffy image”.

Mansmann explains: “The ABA must address issues like how to maintain a life and be a young lawyer with prospects. That is a major issue in the States. And other programmes like skill issues should be approached more.”

The ABA is split into 23 sections that are generally based on areas of legal practice, such as litigation. Each lawyer joins the umbrella organisation and then pays separately for each section they want to become a member of.

Mansmann thinks more hands-on skills workshops should be created. “Conferences are always a good time but I think you would find that at them are the older lawyers,” he says.

But the ABA does not think its appeal to youth is lacking. Barbara Mayden, a lawyer at Bass Berry & Sims in Nashville, who is organising the London ABA conference, says: “I disagree that the ABA does not attract young lawyers.

“The ABA has a young lawyers’ division. If you join the ABA and you are under 36 you are a member of the young lawyers’ association.”

But she does admit that the ABA is having a hard time. “If I have heard anything it is that the economy is too buoyant for people to get involved in the organisation. It is just a timing issue,” she concedes.

But regardless of the problems dogging the ABA, it continues to influence the profession by initiating hundreds of programmes addressing a wide range of social concerns. These include child abuse, issues surrounding the elderly, fair trials and a free press.

The organisation has an annual budget of more than $100m (£62.6m). It makes model systems, is a codifier, an investigator, an experimenter, and is seen by many as a moral force.

But if it hopes to remain as influential as it has been for more than a century, many argue that it needs to be more decisive and should look at how to modernise itself before its impressive reputation diminishes.

ABA

Unlike the UK’s Law Society, the ABA has neither disciplinary powers over lawyers in its country nor the authority to enforce the rules of the legal profession.

In the US federal system it is the supreme court of each state that introduces laws for the conduct of lawyers and regulates them. Each state has a number of local bars. There are hundreds of these across the country. Most try to influence the supreme court to enshrine their views into state law.

But in 36 US states one local bar is an arm of the state supreme courts. These are called unified bars and they have the power to create laws because they are technically part of the supreme court.

Unified bars usually do not have the same heated political debates that the other bars exhibit or aims that are as radical, and in states where they exist there are often more local bars to compensate for this.

The mainstay of the ABA’s authority and credibility rests on the models of legal governance that it creates. When it has made decisions on these, a recommendation statement is handed down to the local bars for discussion. They usually take ABA recommendations as a starting point for discussion and shape its blueprint to fit their own states. The supreme courts or the unified bars usually then act on their decisions and enshrine the matters into law.

But the ABA has other roles. One of these is to investigate the credentials of nominees for federal judgeships. The outcome of the ABA vetting is said to carry great weight when central government is deciding on the issue – it is the US president who officially appoints them.

The ABA also acts as a pressure group on certain issues, such as the death penalty, the rights of minorities, and domestic violence.

Its structure is complex. A house of delegates decides on the organisation’s policy, a board of governors oversees its general operation, and there are many sub-groups with titles such as sections, divisions, committees, task forces, forums and conference groups.

Its total staff is 750, and its members include lawyers, judges, court administrators, law teachers, public service lawyers, many non-practising lawyers who are business executives, and government officials.